Stoppert v. Nierle

• Court: Supreme Court of Nebraska
• Writing for the Court: HARRISON
• Citation: 45 Neb. 105,63 N.W. 382
• Parties: STOPPERT v. NIERLE.
• Decision Date: 21 May 1895

45 Neb. 105
63 N.W. 382

STOPPERT
v.
NIERLE.

Supreme Court of Nebraska.

May 21, 1895.

Syllabus by the Court.

[63 N.W. 382]

1. Proceedings under chapter 37, Comp. St., entitled “Illegitimate Children,” are within the jurisdiction of a county judge, and may be instituted and hearing had before such judge.

2. Errors committed by a justice of the peace or county judge in excluding testimony during the examination of the complainant in a bastardy case will not affect the jurisdiction of the district court.

3. An action under the provisions of our statute in relation to “illegitimate children” is in its nature a civil proceeding, and the rules governing such proceedings apply to it, and each party is entitled to but three peremptory challenges to jurors.

4. Motions for change of venue and for continuance are addressed to the sound discretion of the trial court, and, unless it appears that there has been an abuse of such discretion, its ruling thereon will not be disturbed.

5. The character and reputation of the defendant for chastity and virtue is not an issue

[63 N.W. 383]

in an action of bastardy, and, notwithstanding proof of the facts of his having sexual connection with the complainant, and of his being the father of her child, may affect his reputation for chastity, he cannot invoke the aid of his previous reputation in that respect as tending to disprove such facts.

6. Where the words of a statute are plain, direct, and unambiguous, no interpretation is needed to ascertain their meaning; a mere reading will suffice.

7. The portion of section 5, c. 37, Comp. St., entitled “Illegitimate Children,” in which appears the statement, “And at the trial of such issue the examination before the justice shall be given in evidence,” authorizes the offer and introduction in evidence by either party, during trial in the district court, of the examination of complainant in an action of bastardy, taken before a justice of the peace or county judge.

8. An instruction worded as follows: “It is a fundamental principle of law and evidence that, if a witness is found to have sworn falsely upon one material point, such witness should be presumed to have testified falsely on every other material point. If you find the plaintiff has testified falsely on one matter material to her case, you are at liberty to disregard her entire testimony for that reason alone,”--was requested to be given by plaintiff in error, and the request refused by the trial court. Held not error, for the reason that the instruction was defective and erroneous, in that its statements in relation to a witness or the plaintiff swearing falsely were not qualified by the words “willfully” or “intentionally” or others of like import, and did not correctly express the rule invoked of “Falsus in uno, falsus in omnibus.”

9. Errors assigned in a group, with reference to the giving or refusal to give instructions, will be examined no further than is necessary to ascertain that one of the instructions given was correct, or one refused properly rejected.

10. In an action of bastardy the defendant is entitled to ask the complainant, during cross-examination, whether she had sexual connection with other men at or near the time the child was begotten, and to have such questions answered; and it is error to restrict the range of such cross-examination to a number of days less than the period of gestation, especially so when, as in the case at bar, the time excluded by the restriction is the ten days or two weeks immediately prior to the date when the complainant has testified she had the first act of sexual intercourse with defendant, and also within the period of gestation.

11. This court will not review the rulings of a trial court admitting testimony, unless the particular rulings claimed to be erroneous are definitely pointed out in the allegations of the petition in error.

12. Evidence of declarations of the complainant in a bastardy suit, in which she claimed the defendant was the father of her child, made during ordinary conversations, or out of court, and not during her testimony before the justice or county judge or the district court, is incompetent, and inadmissible.

13. The purposes of a bastardy proceeding are to compel the father of the child to assist the mother in its support and maintenance, and to indemnify the county against its becoming a public charge; and the portion of section 1, c. 37, Comp. St. 1893, in which it is provided that the party accused and the complainant may make a settlement, in so far as the relief sought is for her assistance and benefit, is but an incident to such object of the law, and is expressed in the title of the act for the maintenance and support of illegitimate children, approved February 25, 1875. For act, see Sess. Laws, 1875, p. 53.

Error to district court, Cedar county; Norris, Judge.

Bastardy proceeding by Elizabeth Nierle against Frank H. Stoppert. Judgment for complainant, and defendant brings error. Reversed.

Wilbur F. Bryant, for plaintiff in error.

Gooding & Weed, for defendant in error.

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 sum of $10 per month until the child should be 10 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, 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

[63 N.W. 384]

Altschuler v. Algaza, the decision in which is reported in 16 Neb., commencing on page 361, and 21 N. W., on page 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 error committed by the justice of the peace or examining magistrate in the exclusion of testimony during the examination of the complainant does 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...