State v. McKnight

• Decision Date: 10 May 1898
• Citation: 7 N.D. 444,75 N.W. 790
• Parties: STATE v. McKNIGHT.
• Court: North Dakota Supreme Court

7 N.D. 444

75 N.W. 790

STATE

v.McKNIGHT.

Supreme Court of North Dakota.

May 10, 1898.

Syllabus by the Court.

1.Held, that a motion to dismiss an appeal taken from the district court to this court cannot be sustained upon either or all of the following grounds: (1) On the ground that the specifications incorporated with the statement of the case are insufficient in form or are omitted entirely; (2) on the ground that no assignments of error are made in the appellant's brief or that an attempted assignment therein is insufficient; (3) on the ground that the statute under which the action is commenced is unconstitutional.

2.Section 7840, Rev. Codes, examined.Held, that said section is not repugnant to section 18 of the state constitution.When, under said statute, a complaint in writing on oath, which is sufficient in both form and substance, is filed with the justice of the peace, such complaint constitutes a sufficient showing of probable cause to justify the issue of the warrant, without having recourse to other or extraneous evidence of probable cause.

3.Evidence examined and findings sustained.Held that, this court being in doubt as to the preponderance of the evidence, the same, being in equilibrio, will turn the scale in favor of the holding of the trial court, who saw the witnesses and heard them testify.

Appeal from district court, Ransom county; W. S. Lauder, Judge.

Bastardy proceedings against John McKnight.Defendant had judgment, and the state appeals.Affirmed.P. H. Rourke and C. W. Buttz for the State.Morrill & Engerud, for respondent.

WALLIN, J.

This action was instituted under the provisions of the statute regulating bastardy proceedings.SeeRev. Codes, §§ 7839-7856.The complaint and warrant are framed in conformity to the requirements of the statute, nor does the defendant contend that either the complaint or warrant is insufficient in substance or form.

After his arrest upon the warrant, the defendant gave bail for his appearance at the next ensuing term of the district court, and thereafter all proceedings in the action, prior to its appeal, were had in the district court.Issue was joined by answer to the complaint, which denied all of its material allegations.A jury trial was expressly waived, and the action was tried to the court as a civil action.As facts, the court found that the child of the complainant, when born, was fully developed, and that the defendant was not the father of such child.A statement of the case, embracing the evidence and proceedings had at the trial, was settled below, and the whole case is before this court for trial anew.

In this courtthe respondent has filed a motion to dismiss the appeal, which motion was submitted by counsel in connection with the entire case on the merits.The grounds of the motion may be condensed as follows: First, that the statement does not contain a sufficient specification showing wherein the evidence is sufficient to justify the particular findings of fact which are assailed; second, that the assignments of error, as contained in the brief of the appellant, fail to conform, in certain respects pointed out, to the requirements of the rule of this court regulating assignments of error.

These two grounds are wholly untenable, and furnish no basis for a motion to dismiss an appeal from the district court to this court.The entire absence of any specifications of error in a statement of the case, or of any assignments of error in the brief of the appellant, would furnish no ground whatever for dismissing an appeal to this court.Such defects in procedure have reference only to the questions which may be raised upon the record after the case reaches this court.The appeal is taken and perfected by the notice and undertaking as prescribed in the statute governing appeals.An appeal to this court will not be dismissed, and never has been, on the ground of any irregularities or defects which the record discloses in the preparation of the statement of the case or the abstracts or briefs filed in this court.It is true that rule 32 of the amended rules of this court(61 N. W. xii.) authorizes the court, at its discretion, to dismiss an appeal for a noncompliance with the rules of court within the “time prescribed.”Under this rule, a motion to dismiss an appeal will lie for dilatoriness in serving abstracts and briefs, but does not lie for imperfections in either.

One further ground of the motion is urged, viz. that the law under which the action was instituted is unconstitutional, and hence that all proceedings had under it are null and void.We are of the opinion that this ground of the motion to dismiss is likewise untenable.It is quite true that an action based upon a statute which is wholly unconstitutional will be dismissed whenever the fact is so determined.It is, however, in many cases, very difficult to determine whether a statute is or is not in violation of organic law.The question is strictly one going to the merits, whereas a motion to dismiss an appeal is purely preliminary, and goes upon the theory that for some reason the court is without jurisdiction to determine the merits.Hall v. Superior Court, 68 Cal. 24, 8 Pac. 509;Carlson v. Superior Court, 70 Cal. 628, 11 Pac. 788.But the question of the constitutionality of the act is one going to the foundation of the action, and we deem it proper, therefore, to pass upon it in disposing of the case upon the merits.The contention of counsel is based entirely upon that feature of section 7840 of the statute which declares that “upon the filing of the complaint the magistrate shall issue a warrant.”Counsel's position is that, inasmuch as this statute is mandatory, it violates sections 13and18 of the state constitution, which sections, taken together, secure to the suitor due process of law and immunity from arrest, except upon warrants issued upon probable cause.We are unable to see wherein this statute deprives the defendant of “due process of law,” which in this connection means the usual protection of the law of the land.Under this statute, the court must proceed according to the ordinary rules of judicial inquiry, and certainly judgment can be rendered in this class of cases only after a trial had in due course.All proceedings governing trials and appeals in civil actions in the district court, including the right of trial by jury, are expressly secured to the litigants by the very terms of the act.We see nothing in this feature of the defendant's contention worthy of further attention.

But counsel lays greatest stress upon the point that the justice, as he claims, is arbitrarily required by the statute to issue a warrant, and is not permitted to enter into any inquiry as to probable cause for issuing the same before its issue.This argument ignores certain important requirements of the law.The warrant does not issue upon the mere arbitrary will of the magistrate.There are certain definite prerequisites to its issue under the statute: First, there must be a complaint in writing, under oath, filed with the magistrate; second, such complaint is required to be in a prescribed form; third, the averment of the facts necessary to constitute the cause of action must be positive, and not made on information and belief, and must be made by the female who has or will give birth to the child.Until such complaint is filed, the justice is without authority to proceed, and, when such complaint has been filed, we think a showing of probable cause of some...