State v. Murphy

• Decision Date: 06 February 1926
• Docket Number: 26,806
• Citation: 243 P. 288,120 Kan. 350
• Parties: STATE OF KANSAS, ex rel. LOUISE DIETRICH, Appellee, v. TEDDY MURPHY, Appellant
• Court: Kansas Supreme Court

243 P. 288

120 Kan. 350

STATE OF KANSAS, ex rel. LOUISE DIETRICH, Appellee, v. TEDDY MURPHY, Appellant

No. 26,806

Supreme Court of Kansas

February 6, 1926

Decided January, 1926.

Appeal from Lyon district court; ISAAC T. RICHARDSON, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BASTARDS--Maintenance and Support--Procedure. The statute pertaining to illegitimate children (R. S. 62-2301 to 62-2321) provides, in part, a procedure of its own. To the extent it does so, that procedure must be followed; to the extent it does not do so, the procedure of the civil code applies.

2. SAME--Institution of Proceeding--Nature and Effect. To institute a proceeding under the statute pertaining to illegitimate children is tantamount to commencing an action under the civil code.

3. SAME--Limitations of Action--When Proceedings Instituted. A complaint under the statute pertaining to illegitimate children was filed with a justice of the peace November 25 1922, and a warrant was issued on that date. The child whose paternity was in question was born May 10, 1922. On December 18, 1923, the warrant was returned and filed without having been served. On October 1, 1925, the same warrant was delivered to the then sheriff and by him served October 3, 1925. Held, the proceeding was not instituted within two years after the birth of the child.

Walter F. McGinnis, Jr., of El Dorado, W. S. Kretsinger, and Roland Boynton, both of Emporia, for the appellant.

S. S. Spencer, county attorney, and Wm. C. Harris, of Emporia, for the appellee; Owen S. Samuel, of Emporia, of counsel.

OPINION

HARVEY, J.

This is a proceeding under the statute pertaining to illegitimate children (R. S. 62-2301 to 62-2321). The defendant filed in the district court a demurrer and motion to quash in which he raised the question that the proceeding had not been instituted within the time required by statute (R. S. 62-2317). This was overruled by the court, and defendant has appealed. The sole question before us is whether the proceeding was instituted in time.

On November 25, 1922, Louise Dietrich filed, with R. E. Evans, a justice of the peace at Emporia, a complaint "that on the day of , 1922 (the testimony disclosed this date to be May 10, 1922), she was delivered of a bastard child, and that Teddy Murphy is the father of such child. . . ."; and on the same day a warrant was issued for the arrest of Teddy Murphy. On December 18, 1923, this warrant was filed with the justice of the peace without any indorsement thereon as to service upon defendant. At the November election, 1924, R. E. Evans was succeeded as justice of the peace by C. L. Soule; also, another sheriff was elected. On October 1, 1925, the then sheriff received the warrant above mentioned and executed it October 3, 1925, by arresting Teddy Murphy and taking him before C. L. Soule, justice of the peace. Presumably the warrant had been in the files of the justice of the peace from December 18, 1923, when it was there filed, until it was received by the sheriff October 1, 1925. On being brought before the justice of the peace defendant gave bond for his appearance on a day set for the hearing. At that time defendant moved to be discharged for the reason, among others, that the proceeding had not been instituted in time. This was overruled, a hearing was had, defendant was bound over to the district court and the papers certified and filed in that court. Defendant then filed his "demurrer and motion to quash," and has appealed from an adverse ruling thereon. The statute provides:

"No prosecution under this act shall be instituted after two years from the birth of such bastard child." (R. S. 62-2317.)

This statute is a condition precedent to statutory liability rather than a statute of limitation. (The People v. Johnson, 220 Ill.App. 212.) The trial court held that the proceeding was instituted within the meaning of this statute when the complaint was filed before the justice of the peace; hence, if the complaint were filed within two years after the birth of the child, the warrant for the arrest of the putative father could be issued, or served, at any time thereafter. This construction renders the statute nugatory, for all practical purposes, for, if this be true, a complaint might be filed within the time fixed by statute, and no warrant issued, or issued and not served, for five or ten years or more, even though the parties all lived in the same vicinity. And, since the complaint may be filed before any justice of the peace in the state (R. S. 62-2301; In re Lee, Petitioner, 41 Kan. 318, 21 P. 282), the advantages that might be taken and injustices which might result are obvious. The purpose of a statute fixing a time within which the proceeding must be instituted is to require a reasonably early hearing. This purpose would be thwarted by the construction of the statute given by the trial court.

The question before us is governed by statute. The statute pertaining to illegitimate children (R. S. 62-2301 to 62-2321) provides in part a procedure of its own. To the extent it provides a procedure of its own, that procedure must be followed. To the extent it does not provide a procedure of its own, the procedure is governed by the provisions of the civil code (R. S. 62-2308). The word "instituted" in R. S. 62-2317 is tantamount to the word "commenced" in R. S. 60-301, 60-308. The warrant when issued is civil process (7 C. J. 979), except to the extent the statute makes it otherwise. The mode of...