Stoppert v. Nierle

• Decision Date: 21 May 1895
• Docket Number: 6438
• Citation: 63 N.W. 382,45 Neb. 105
• Parties: FRANK H. STOPPERT v. ELIZABETH NIERLE
• Court: Nebraska Supreme Court

63 N.W. 382

45 Neb. 105

FRANK H. STOPPERT v. ELIZABETH NIERLE

No. 6438

Supreme Court of Nebraska

May 21, 1895

ERROR from the district court for Cedar county. Tried below before NORRIS, J.

REVERSED AND REMANDED.

Wilbur F. Bryant, for plaintiff in error.

Gooding & Weed, contra.

OPINION

HARRISON, J.

On the 12th day of July, 1892, the defendant in error filed a complaint with the county judge of Cedar county, in which she charged the plaintiff in error with the paternity of her unborn bastard child. A warrant was issued and the plaintiff in error was arrested and brought before the county judge and on hearing was held to appear before the district court to answer the charge. During the next term of the district court in Cedar county, after some preliminary matters (which will be noticed in their order in so far as objected to and properly assigned as error) had been presented and disposition made of them, the case was tried before the court and a jury and the defendant pronounced guilty by the jury in their verdict, and, after motion for new trial was heard and overruled, adjudged by the court to pay to the complainant the sum of $ 150 and the further sums of $ 10 per month until the child should be ten years of age, and the costs, with the further requirement that he give a bond in the sum of $ 1,200 to secure the performance of the judgment and order of the court, and if such bond was not given, to be committed to jail, etc. To reverse this judgment the case has been brought by proceedings in error to this court.

The first assignment of error in plaintiff's brief is that the court erred in overruling a motion to strike the case from the files,--by which we presume was meant to dismiss it as that would have been the effect of an order sustaining the motion,--on the ground that the preliminary examination was before the county judge, and that a county judge has no jurisdiction of a complaint in an action for bastardy. The question of the jurisdiction of a county judge in such a proceeding as this was presented to this court in Ingram v. State, 24 Neb. 33, 37 N.W. 943, and in the opinion then written it was held: "The county judge has jurisdiction to hear proceedings instituted under chapter 37 of Compiled Statutes, entitled 'Illegitimate Children,'" and we are satisfied with the conclusion reached at that time and will adhere to it.

It is further urged that the trial court should not have admitted in evidence the testimony of the complainant given at the preliminary hearing before the county judge, for two reasons: First, the testimony of the complainant taken at the preliminary hearing can be used by the defendant, but not introduced in behalf of the complainant; second, the county judge erred in sustaining objections to questions propounded to complainant for defendant during the hearing. With reference to the second of the above reasons it will suffice to say that the question raised was presented to this court in the case of Altschuler v. Algaza, 16 Neb. 631, 21 N.W. 401, the error assigned being, as in the case at bar, that to questions asked the complainant during her cross-examination, at the time she instituted her action before the justice of the peace, objections were made and sustained and the evidence sought to be elicited thus excluded, and it was then said that errors committed by the justice of the peace or examining magistrate in the exclusion of testimony during the examination of the complainant do not affect the jurisdiction of the district court. The first of the reasons as above stated in regard to the admission of the evidence taken at the examination before the county judge we will pass for the present and revert to it hereafter.

It is further assigned as error that the defendant was allowed but three peremptory challenges. The rule in regard to the number of peremptory challenges to which either party is entitled in a case like the one at bar was announced by this court in Kremling v. Lallman, 16 Neb. 280, 20 N.W. 383, where it was stated that three was the correct number. We are satisfied with the conclusion reached in that case and the rule established.

It is contended that the trial court erred in overruling the defendant's motion for a change of venue. There were some affidavits filed in support of this motion and also some in opposition, and after an examination of them we do not feel warranted in saying that the trial court was wrong in concluding that the defendant could have a fair and impartial trial in the county where the action was pending, and it was not error to overrule the motion. (Northeastern Nebraska R. Co. v. Frazier, 25 Neb. 42, 40 N.W. 604.) Such a motion is addressed to the sound discretion of the court, and unless it appears that there was an abuse of such discretion, its ruling upon the same will not be disturbed. (Smith v. State, 4 Neb. 277.) There was no unfair exercise of discretion by the trial court in its ruling upon the motion in this case for a change of venue; hence it is approved.

A motion for continuance was filed on behalf of defendant, which was denied by the court, and this action is assigned for error. The disposition of such an application is one which calls for the exercise of the discretionary power of the trial court, and if no abuse of such power appears, there is no error, and, as an examination of the record discloses to us no just cause for complaint in this respect, the action of the district court in denying the motion must be allowed to stand.

During the trial plaintiff in error called a witness to prove his reputation for virtue and chastity, and an objection interposed to the testimony was sustained by the court and the evidence excluded. The plaintiff in error made the offer to prove the facts to establish his reputation in the particulars stated and the court adhered to its former ruling. The case on trial is in the nature of a civil action, and in such actions, where the reputation in any particular is not in issue and has no direct bearing upon the questions involved, evidence of it is not competent or material. Such testimony is not admissible in an action for damages for an assault or assault and battery. In an action for damages for the alleged willful and malicious setting fire to and burning some stacks of wheat belonging to plaintiff it was held that evidence of defendant's good character was not admissible. (Barton v. Thompson, 56 Iowa 571, 9 N.W. 899.) In such a case, no matter how serious a moral delinquency may be involved in a fact and how much the establishment of the fact may affect a party's reputation, he cannot invoke the aid of his previous reputation to disprove the fact. (Smets v. Plunket, 1 Strob. 372. See, also, Boick v. Bissell, 45 N.W. 55; Klein v. Bayer, 45 N.W. 991; Norris v. Stewart's Heirs, 10 S.E. 912; Gough v. St. John, 16 Wend. 647.) Character is not in issue in bastardy proceedings. (Houser v. State, 93 Ind. 228.) The evidence of character offered by plaintiff in error was not admissible and the court did not err in excluding it.

We will now return to the assignment of error which we passed over that the court was in error in allowing defendant in error to introduce the evidence taken during the examination before the county judge, the plaintiff in error having objected to such admission. It is claimed by plaintiff in error that the examination of complainant before the justice of the peace in an action of bastardy is directed by the law to be preserved and a transcript made of it and forwarded to the district court with the other papers for the benefit of the defendant in the action, and he may waive its use as evidence during the trial of the cause in the district court, and if he does so, it cannot be introduced by the other party to the action. We are cited by counsel for plaintiff in error to the case of Strickler v. Grass, 32 Neb. 811, 49 N.W. 804, as supporting the above contention. There are some expressions used in the opinion in that case that lend some color to such a claim, but as we read the case cited it does not discuss or pass upon the point raised in the case at bar, but discusses and decides an entirely different question. This court has said in an action of bastardy (Altschuler v. Algaza, supra): "The evidence of the complainant on the preliminary examination, reduced to writing by the justice and transmitted to the district court, is for the purpose of confirming or impeaching her testimony in the latter court;" but it may be said that the statement last quoted, viewed as a precedent, is subject to the same infirmities as the case of Strickler v. Grass, supra, and probably it is open to the same objection. But be this as it may, in section 5, chapter 37, Compiled Statutes, under the statutory provisions of which this action was instituted, appears this sentence: "And at the trial of such issue the examination before the justice shall be given in evidence, and the mother of the bastard child shall be admitted as a competent witness, and her credibility be left to the jury," and the words used are plain and direct in their import and no interpretation of them is necessary to ascertain their meaning. The statement is that "the examination before the justice shall be given in evidence," and to us it clearly authorizes its use by either party and its reception when offered by either. In the case of Hoff v. Fisher, 26 Ohio St. 7, it was said (note that the words of the law as quoted are identical with those employed in our statute): "Section 9 of the bastardy act provides, 'and at the trial of such issues the examination before the justice shall be given in evidence and the mother of the bastard child shall be admitted as a competent witness.' Under this provision, either party...