No. 32392. | Miss. | Nov 16, 1936
Appellant, Betty Bass, exhibited her amended bill against the appellee, John Edward Ervin, by which she sought to recover from the appellee support, and physicians' bills incurred and expended by her, for the maintenance of their minor child, Fred Edward Ervin. The bill alleged that the child was born on the fifth day of *51 April, 1933, while appellant and appellee were legally married and in law husband and wife, and that the child had been in the custody of its mother since its birth. It was further alleged that the marriage was annulled on July 1, 1933, and that since the birth of the child appellant had made certain arrangements with her parents for the support of the child, and had made payments on that contract, but that she herself was poverty-stricken, as were her parents, and that she was unable to pay an adequate amount for the support of the child.
The bill further alleged that there was a bastardy proceeding before a justice of the peace on December 9, 1933, and that said cause was appealed to the circuit court, where a judgment was rendered against the appellee, ordering him to pay the sum of fifteen dollars monthly as sued for, for the support of the child as an illegitimate until he became eighteen years of age; and further that this cause was appealed to the Supreme Court, being reported in Ervin v. Bass,
The account is itemized, and it is unnecessary to detail the items here.
The prayer of the bill is that a decree be rendered against the appellee, the father of the said child, for its support and maintenance, and for an order fixing the future support of said child.
To this bill, appellee filed a plea of res adjudicata. In brief, it sets up the pleadings and decree in the annulment case, dated July 1, 1933, as establishing that the decree of annulment there rendered, on the ground of duress and coercion, adjudicated that the child, whose support is here sought to be enforced, was illegitimate; and further that, no petition or request having been made to the court in the annulment proceedings for its support, the appellant, the mother of the child, at a subsequent date, had waived any right to ask for its support and now have same granted.
It may be assumed, without setting forth the decree, that the decree in the annulment proceeding was to the *52 effect that the marriage had between the parties was the result of coercion and duress, and was void ab initio as between them.
Without regard to whether the plea as filed may be treated as an answer, we shall proceed to decide the case on the merits as to the plea. The court below held that, because in appellant's answer to the bill for annulment it was averred that, if such decree was granted, her child would thereby become an illegitimate child, and because she did not in that proceeding present any request to the court for the support of this child, thereby she had waived her right in a subsequent proceeding to maintain a bill for that purpose. From the decree sustaining appellee's plea to the bill of appellant for the support of her child, appeal to this court is made by the appellant.
On consideration of the proceeding in bastardy between the same parties in this court, the law applicable to this case, and all others similar, was settled. It was held that, where the putative father of an unborn child married the woman during her pregnancy with knowledge thereof, and during their wedlock the child was born, the legitimacy of the child was established upon this truth during wedlock, and a subsequent decree of annulment on the ground of coercion did not render the child illegitimate; that a marriage, the consent to which has been induced by coercion and duress, is not void, but voidable; and that the marriage remained valid for all purposes until dissolved by a decree of a competent court. See Ervin v. Bass,
In the case of Ervin v. Bass, supra, it was held that bastardy proceedings could not be maintained for the reason a child born in wedlock was not a bastard, but a legitimate child. It was further held therein that proper provision for the support and maintenance of the child should have been made in the decree of annulment. The question of the support of the child was not presented to the chancery court in the annulment proceedings. In that case the court cited Amis on Divorce and Separation in Mississippi, sec. 30, which is, in effect, that proceedings in annulment for support and alimony are controlled by our procedure on divorce. In the case of Sims v. Sims,
Presumptively, then, Ervin is the father of this child, and is primarily liable for its support, the mother being liable secondarily. There was a ceremonial marriage, as alleged. In the cases of Lee v. Lee,
We have not here considered the items of the account as presented in the amended bill, but have simply disposed of the case upon the plea of res adjudicata, there being no other question before us.
Reversed and remanded.