Tiger v. State

• Decision Date: 28 February 1933
• Docket Number: 21485.
• Citation: 19 P.2d 568,162 Okla. 159,1933 OK 153
• Parties: TIGER v. STATE.
• Court: Oklahoma Supreme Court

19 P.2d 568

162 Okla. 159, 1933 OK 153

TIGER v. STATE.

No. 21485.

Supreme Court of Oklahoma

February 28, 1933

Syllabus by the Court.

1. A complaint in a bastardy proceeding which fails to allege that the mother of the illegitimate child is a resident of the county in which the proceedings are commenced is insufficient, and it is error to overrule a timely demurrer thereto.

2. A complaint in a bastardy proceedings being amendable when a demurrer is sustained thereto, it should be with leave to amend if leave is requested.

Appeal from County Court, Okfuskee County; Harry Stephenson, Judge.

Bastardy proceeding by the State against Moty Tiger. From an adverse judgment, the defendant appeals.

Reversed and cause remanded, with directions.

Seawell & Dooley, of Okemah, for plaintiff in error.

J Berry King, Atty. Gen., and J. H. Lawson, Asst. Atty. Gen for the State.

RILEY Chief Justice.

This is an appeal from a judgment entered against plaintiff in error in a bastardy proceeding, based upon a complaint which failed to allege that the mother of the alleged bastard child was a resident of Okfuskee county, wherein the proceedings were commenced. The defendant raised the question of the insufficiency of the complaint in this regard by demurrer to the complaint, objection to the introduction of any evidence by objection to evidence as to the residence of the mother of the child, by demurrer to the evidence and by motion for judgment for defendant, notwithstanding the verdict.

Notwithstanding the many decisions of this court holding such a complaint insufficient, the trial court overruled each and every and all the objections raised by defendant upon a verdict based upon such complaint, entered judgment against said defendant. That such a complaint is insufficient has been held by this court too many times to require any discussion of the question.

The question was presented in Cummins v. State, 46 Okl. 51, 148 P. 137, 138, wherein it was held: "And a complaint which fails to state that the mother of such child is a resident of the county in which the action is brought is not sufficient to constitute a cause of action." Pinkerstaff v. State, 112 Okl. 91, 240 P. 107, holds the same.

In Cummins v. State, supra, the order of this court was "On account of want of proper averments as to the residence of the mother of the illegitimate child, this cause should be reversed and remanded, with leave...