Welch v. Cliburne

• Decision Date: 10 May 1909
• Docket Number: 13,833
• Court: Mississippi Supreme Court
• Parties: LAURA WELCH v. ANDREW CLIBURNE

49 So. 184

94 Miss. 443

LAURA WELCH v. ANDREW CLIBURNE

No. 13,833

Supreme Court of Mississippi

May 10, 1909

FROM the circuit court of Simpson county, HON. ROBERT L. BULLARD Judge.

Laura Welch, the appellant, was plaintiff in the court below, and Cliburne, the appellee, was defendant there. From a judgment in defendant's favor the plaintiff appealed to the supreme court.

The opinion of the court states the facts.

Judgment affirmed.

R. L. &amp E. L. Dent, and J. P. Edwards, for appellant.

Code 1906, § 268, provides that "when any single woman shall be delivered of a bastard, or being pregnant with child which if born alive would be a bastard, shall make complaint against the father of the child to any justice of the peace of the county where she may be so delivered, the justice shall issue a warrant for the person accused," etc. Our contention is that, notwithstanding the fact that appellant married Welch before she was delivered of the child which by the demurrer was conceded to be the child of appellee, she can still recover of appellee, and this, notwithstanding the further fact that she was a married woman, wedded to Welch at the time she instituted proceedings against the appellee, Cliburne.

The fact that the mother is a married woman will not preclude her from instituting suit for recovery of the support of her child born out of wedlock. 5 Cyc. 650; State v. Ingram, 5 Tenn. 221.

Hilton & Hilton, and Chalmers Alexander, for appellee.

It will be noted that the appellee was married to Welch when she went before the justice of the peace and set in machinery the proceedings called for in Code 1906, ch. 15, against appelless. She was also married to Welch some few months before the child in question was born. Her marriage to Welch shut her off from making complaint against Cliburne under Code 1906, ch. 15.

The bare facts are here undisputed. A married woman had a baby, and she says that it is the son of one who is not her husband. But will her say-so make the child a bastard in law? Does not the law, for policy's sake, hold that the child, when born after the woman's marriage to her husband, is to be conclusively considered the child of the husband? See 60 L. R. A. 699; 5 Cyc. 65; Limestone v. Kerr, 17 Ala. 328; Pruitt v. County Judge, 16 Ala. 705.

The case of State v. Ingram, 3 Tenn. 377, cited by appellant, is not in point, inasmuch as the woman in that case was unmarried at the time she instituted suit against Ingram, and the child was born before her subsequent marriage.

OPINION

WHITFIELD, C. J.

This was a proceeding under chapter 15, Code of 1906, to compel appellee to support a child, alleged to be a bastard. The appellant, after she had been gotten with child, as alleged by appellee, married another man, who, upon finding out that she was pregnant, deserted her. The child was born some months later, and appellant then filed this proceeding against the appellee; she being at the time of the filing of the complaint, a married woman. The point was made in the court below that she could not maintain the proceedings marked out in said chapter 15, because such chapter refers alone to a single woman who shall have a bastard. This point was maintained by the court below, and the proceedings dismissed.

We thing the action of the court below was correct under our statute. The language of Code 1906, § 268, is "When any single woman shall be delivered of a bastard, or being pregnant with a child which, if born alive, would be a bastard, shall make complaint," etc. A child born in wedlock is presumed to be legitimate until the contrary is shown; and the child referred to in the second clause of the statute means a child which, when born, will be in the eye of the law a bastard--that is to say, the child of a single woman. Code 1906, § 273, provides...