State v. Johnson, 33606.

• Decision Date: 11 February 1944
• Docket Number: No. 33606.,33606.
• Parties: STATE v. JOHNSON.
• Court: Minnesota Supreme Court

216 Minn. 427
13 N.W.2d 26

STATE
v.
JOHNSON.

No. 33606.

Supreme Court of Minnesota.

Feb. 11, 1944.

Appeal from District Court, Hennepin County; Lars O. Rue, Judge.

Fred J. Johnson was convicted of being the father of an illegitimate child, and he appeals.

Affirmed.

Syllabus by the Court.

1. Where the police were unable to find the defendant in an illegitimacy proceeding and arrest him within five years after the filing of the complaint, he is not entitled to a dismissal, under Minn.St.1941, § 546.38, Mason St.1927, § 9321, for failure to bring the proceeding on for trial within five years after the filing of the complaint.

2. An illegitimacy proceeding is not barred under § 541.05(2) (§ 9191 [2]), as an action upon a liability created by statute required to be brought within six years, where it is commenced during the minority of the child and while the father is under a continuing obligation to provide for its care, maintenance, and education.

J. Russell Carroll, of Hopkins, for appellant.

J. A. A. Burnquist, Atty. Gen., Michael J. Dillon, Co.Atty., and Lucien A. Selover, Asst. Co. Atty., both of Minneapolis, for respondent.

PETERSON, Justice.

Defendant was convicted of being the father of an illegitimate child, conceived on November 6, 1934, and born on July 30, 1935. On April 30, 1937, a complaint charging him with being the father of the child was filed and a warrant for his arrest was issued. Defendant was arrested and brought into the municipal court of Minneapolis on June 20, 1942, which held him to the district court. He was tried and convicted

[13 N.W.2d 27]

in the district court of Hennepin county on March 16, 1943. On May 21, 1943, judgment was entered, among other things, that defendant should be subject to all the obligations for the care, maintenance, and education of the child and to all penalties for failure to perform the same as the father of a legitimate child of like age and capacity, and that he pay the sum of $15 per month beginning March 30, 1943, for the care, support, and education of the child.

Two questions are presented: (1) whether the proceeding should have been dismissed under Minn.St.1941, § 546.38, Mason St.1927, § 9321, for failure to bring it on for trial within five years; and (2) whether prosecution was barred under § 541.05(2) (§ 9191[2]), as an action upon a liability created by statute not brought within six years.

1. Under § 546.38 (§ 9321), the district court has discretionary power to dismiss ‘any and all actions or proceedings pending therein in which issue shall have been joined and which shall not be brought to trial within five years from and after the commencement of each action or proceeding.’ Where delay in bringing an action or proceeding on for trial is explained to the satisfaction of the court, it may refuse to dismiss. Wheeler v. Whitney, 156 Minn. 362, 194 N.W. 777. We think that there was satisfactory explanation here of the failure to try defendant sooner. Although there was evidence to the effect that he lived with the complainant during part of the period within the territorial jurisdiction of the court, the fact remains that the police did not apprehend him. It appears by the return of the police officer who was entrusted with the warrant for arresting defendant that after due and diligent search and inquiry the officer was unable to find him in Hennepin county. The return is in no manner assailed. The county attorney could not bring the proceeding on for trial until defendant was before the court. Where, as here, the defendant is at large and the only means of obtaining jurisdiction of him in an illegitimacy proceeding is by his arrest under a warrant issued for the purpose pursuant to § 257.18, subd. 2 (§ 3270), the court is powerless to proceed until he has been arrested and brought before it. Moyer v. Bucks, 2 Ind.App. 571,28 N.E. 922,16 L.R.A. 231, 50 Am.St.Rep. 251. Of course he could have waived arrest under the warrant and appeared...