Vivori v. Fourth Dist. Court of Berkshire

• Decision Date: 02 November 1948
• Citation: 323 Mass. 336,82 N.E.2d 9
• Parties: VIVORI v. FOURTH DISTRICT COURT OF BERKSHIRE
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

323 Mass. 336

82 N.E.2d 9

VIVORI

v.FOURTH DISTRICT COURT OF BERKSHIRE

Supreme Judicial Court of Massachusetts, Berkshire.

Nov. 2, 1948.

Appeal from Superior Court, Berkshire County; Brogna, Judge.

Before QUA, C. J., and LUMMUS, DOLAN, RONAN, and WILKINS, JJ.

Petition by Joseph Vivori, Jr., for certiorari to review ruling of Fourth District Court of Berkshire. From an order quashing the order of notice issued on petition to revoke previous dismissal of prosecution for bastardy, respondent appeals.

Petition for certiorari dismissed.

E. H. Rosasco, of No. Adams, for petitioner.

B. Lenhoff, of No. Adams, for respondents.

RONAN, Justice.

Vivori pleaded not guilty to a complaint for violation of G.L. (Ter.Ed.) c. 273, § 11, issued in a District Court on April 25, 1946, charging him with getting one O'Brien with child, he not then being married to her, and the case was continued to August 1, 1946, when, it appearing that a child had been born to said O'Brien and that she had entered into a written agreement by which he had agreed to make monthly payments in a certain amount for the support of the child, the judge upon the filing of the agreement with the court, indorsed upon the complaint a statement over his signature that he found ‘that adequate provision has been made under all the circumstances for the support of the child and therefore orders that said case may be dismissed.’ Vivori having failed to make the stipulated payments, O'Brien on September 5, 1947, filed a petition to revoke the finding and order made on August 1, 1946, alleging that the judge was induced by the misrepresentation, fraud and deceit of Vivori to enter the order dismissing the complaint. Vivori appeared in accordance with an order of notice, and filed an answer in abatement, so called, alleging that the judge was barred by G.L. (Ter.Ed.) c. 273, § 17, from reopening the case, and that he had no jurisdiction to grant the petition. The District Court ruled that the answer did not constitute a defence to the petition, and Vivori filed this petition for certiorari in the Superior Court. The respondent appealed from an order quashing the order of notice issued on O'Brien's petition.

Jurisdiction to determine the paternity of illegitimate children and to provide for their maintenance and support has been conferred by G.L. (Ter.Ed.) c. 273, §§ 11-19, inclusive, upon District Courts which are courts of general and superior jurisdiction with reference to all cases and matters which have been entrusted to them. G.L. (Ter.Ed.) c. 218, § 4. Said §§ 11-19, inclusive, originated in St. 1913, c. 563, which was enacted primarily to further the interests of the child by requiring the father to contribute reasonably to its support so that the child would not become a public charge. Chapter 563 was said in Commonwealth v. Dornes, 239 Mass. 592, 594, 132 N.E. 363, 364, to be ‘a radical departure from the type of bastardy legislation that had come down from early colonial times. It makes the begetting of an illegitimate child, a misdemeanor, and the nonsupport of such child, a distinct and continuing offense.’ See Commonwealth v. Baxter, 267 Mass. 591, 595, 166 N.E. 742;Commonwealth v. Hall, 322 Mass. 523, 528, 529, 78 N.E.2d 644.

The chapter created new offenses which were to be prosecuted in District Courts in accordance with the usual proceedings adopted in those courts for the trial of misdemeanors excepting only such procedural changes as are mentioned in this chapter. The defendant, if adjudged to be the father of the illegitimate child, ‘may appeal therefrom to the superior court as in other criminal cases', § 12; a father who fails to...