Taylor v. Scott, 35616

• Decision Date: 21 January 1959
• Docket Number: No. 35616,35616
• Citation: 168 Ohio St. 391,155 N.E.2d 884
• Parties: , 7 O.O.2d 243 TAYLOR, Appellee, v. SCOTT, Appellant.
• Court: Ohio Supreme Court

Page 391

168 Ohio St. 391

155 N.E.2d 884, 7 O.O.2d 243

TAYLOR, Appellee, v. SCOTT, Appellant.

No. 35616.

Supreme Court of Ohio.

Jan. 21, 1959.

Syllabus by the Court

1. Prosecutions of complaints under Sections 3111.01 to 3111.24, inclusive, Revised Code, relating to bastardy, are, unless specified otherwise therein, governed by the procedure provided for the trial of civil cases, and an action brought thereunder by a minor must be in compliance with Section 2307.11, Revised Code.

2. Where a minor commences an action under Section 3111.01, Revised Code, and no attack is make upon her capacity to sue until after a verdict is rendered finding the defendant guilty, the trial court has the power under Section 2309.58, Revised Code, to permit the minor to amend her complaint to show her minority by adding the affidavit of her mother, as next friend, to the complaint and to conform the complaint and proceedings to the facts proved when the amendment does not substantially change the claim, and failure to do so constitutes error.

This cause originated in the Portsmouth Municipal Court in Scioto County, after Annette Taylor, complainant, appellee herein, filed a complaint in writing, dated August 1, 1955, stating under oath that 'she is an unmarried woman, resident of Portsmouth * * *, and that on July 28, 1955, she was delivered of a bastard child and that Robert Scott [defendant, appellant herein] is the father of said child.'

The cause was heard on September 1, 1955, and the defendant, being present in open court and being arraigned upon a charge of bastardy, entered a plea of not guilty to the charge. Thereupon the court proceeded to hear the evidence of the complainant upon both direct examination and cross-examination.

She testified at that time that she was 20 years old. Thereafter, as provided by statute, the court ordered that the defendant be held to the Court of Common Pleas under bond, and a transcript of the proceedings in the Municipal Court, duly authenticated, was filed in the Court of Common Pleas.

The case came on for trial on its merits in February 1957. Both parties were present in open court and represented by counsel, and both testified. On the second day of February, the jury returned a verdict in favor of the complainant and found the defendant to be the reputed father of the illegitimate child. By the time of trial, the complainant was of age.

Immediately upon the reading of the verdict, the defendant, by counsel, made an oral motion (which was written into the record) as follows:

'Whereupon counsel for the defendant moved the court for an order in arrest of judgment based on the fact that the record shows the complaint in this proceeding was initiated upon the affidavit of Annette Taylor as complainant while she was of the age of 20 years and under the age of majority.'

It is stipulated that this was the first and only time that the defendant raised any objection to the fact that the complainant was a minor at the time of the original affidavit, and that such original affidavit had not been signed by a next friend.

Complainant thereupon moved the court for 'leave to amend the original complaint herein to conform said complaint and the proceedings hereunder to the facts proved, to wit:

'To show the minority of the complainant at the time of the filing of the complaint and by adding the name of Ruth Taylor as mother and next friend of complainant, and for such other additions, corrections or insertions as shall be necessary to conform the pleadings and proceedings to the facts proved.'

At the same time, an amended affidavit in bastardy, executed by 'Ruth Taylor, mother and next friend of Annette Taylor, a minor, complainant herein,' was submitted to the Court of Common Pleas and is a part of the record. On April 18, 1957, the motion of the complainant to amend the affidavit was overruled, and the motion of the defendant for an order in arrest of judgment and for dismissal of the cause was sustained and the cause dismissed 'without prejudice to the institution of a proper proceeding in accordance with law.'

An appeal to the Court of Appeals resulted in a reversal of the judgment of the Court of Common Pleas and an order that the cause be remanded to that court to vacate its judgment for the defendant and to enter judgment for the complainant on the verdict. Finding, also, 'that the decision and judgment rendered herein * * * is in conflict with the decision rendered by the Court of Appeals of Hamilton County, Ohio, in the case of State ex rel. Love v. Jones, reported in 98 Ohio App. 45, 128 N.E.2d 228, 50 A.L.R.2d 1022, on the same subject,' the Court of Appeals certified the record to this court for a review and final determination.

Ernest G. Littleton, Portsmouth, for appellant.

Kimble, Schapiro, Stevens & Harsha, Portsmouth, for appellee.

HERBERT, Judge.

This case presents a single question of law. Did the Court of Appeals err when it reversed the judgment of the Court of Common Pleas dismissing the cause upon the sole ground that the complainant was under the age of 21 years at the time she instituted this action in her own name?

Section 3111.03, Revised Code, provides in part:

'In case of the death or disability of an unmarried woman who would otherwise be eligible to make a complaint * * * her guardian, a probation officer of the juvenile court, or a representative of the division of social administration acting as her guardian ad litem whether she is of age or not, may make and prosecute the complaint as if prosecuted by the mother herself * * *.' (Emphasis added.)

The hearing in the Municipal Court was held as required in Sections 3111.04 and 3111.05, Revised Code, and the transcript of the proceedings in the Municipal Court was filed in the Court of Common Pleas, as provided in Section 3111.10. The defendant was accorded all his rights (Sections 3111.14 and 3111.15). No error was claimed by defendant in the entire proceeding until after the verdict was rendered, when the defendant made his motion for arrest of judgment and dismissal of the cause.

The question as to the exact nature of a bastardy proceeding has been before this court before. In the case of State ex rel. Gill v. Volz, 156 Ohio St. 60, 100 N.E.2d 203, 205, the second paragraph of the syllabus states:

'2. Although the General Assembly has, in the enactment of the General Code of Ohio, Classified bastardy proceedings as 'quasi-criminal proceedings,' and although a bastardy proceeding possesses some of the characteristics of a criminal prosecution the applicable statutes do not contemplate the punishment of a criminal act but only the enforcement of a moral duty of reimbursing the complainant for expense of and maintaining the child, and the civil nature of such a proceeding is such that a verdict of guilty against the putative father may be rendered upon the concurrence of three-fourths or more of the members of the jury.'

In the opinion by Hart, J., the history of the Ohio Bastardy Act is set out. The opinion concludes:

'This court, in view of the historical background of the legislation relating to this matter and in view of what appears to be the long settled practice of the inferior courts of this state, is constrained to hold that a bastardy proceeding is essentially a civil action * * *.'

Although the decision in that case was rendered by a divided court on the question of sufficiency of a jury verdict (not raised here), there appears to be little dissension from the general proposition that civil procedures control in bastardy proceedings unless otherwise specified in the special statutes applicable thereto. We hold to that view here.

Section 2307.11, Revised Code, provides:

'The action of an insane person must be brought by his guardian; and of an infant by his guardian or next friend. When the action is brought by his next friend, the court may dismiss it, if it is not for the benefit of the infant, or substitute the guardian, or any person, as the next friend.'

The language of this section has remained virtually unchanged since the original enactment of such a provision in 1831 (29 Ohio Laws 56, Section 59) and is almost identical with that appearing in 51 Ohio Laws 57, Section 30 (1853), so that a minor is 'an infant,' with respect to this provision of law, until he attains the age of 21 years.

Under this section a court has virtually unlimited discretionary power to protect the rights of a minor in an action.

The case of Canterbury v....