Beckett v. State ex rel. Rothert

4 Ind. App. 136 | Ind. Ct. App. | 1892

Crumpacker, J.

This was a prosecution for bastardy. The record shows that a complaint in due form was filed before a justice of the peace, upon which a warrant was issued • for the arrest of the defendant. The warrant was returned “not found,” and the justice heard the complaint in the absence of the defendant, and decided that he was the father of the relatrix’s child, and certified the cause to the circuit court. There an affidavit was filed, showing that the defendant was a non-resident of the State, and an order was entered directing that notice be given of the pendency of the action by publication. In pursuance of such order, notice was published in a' newspaper; and, ata subsequent term of court, due proof thereof was made, and the defendant was called and defaulted. The cause was submitted to the court for trial,, and a finding was entered that the relatrix had been delivered of a bastard child, of which the defendant was the father, and judgment was rendered against him for $600, payable in .instalments, providing in the event of his failure to pay or replevy such judgment, that he be committed to the jail of the county until discharged by law.

The defendant appeals from such judgment, and assigns for error that the court had no jurisdiction of his person, and the judgment is void. There is no statutory provision authorizing notice by publication in bastardy cases, and such notice, without authority of law, is equivalent to no notice at all. A ^personal judgment can not be rendered against the defendant upon constructive notice, even when such notice is authorized by statute. It can confer jurisdiction only in proceedings in rem, or where it is the purpose of the action to determine the status of the parties, as in divorce cases, and then it is effective only to the extent necessary to make the proceedings in rem, or judgment affecting tlie status operative and efficient. The finding or judgment in such cases can not be made the basis of a personal liability. Quarl v. Abbett, 102 Ind. 233.

At common law the putative father of an illegitimate child could not be compelled to contribute to its support. This burden reste.d solely with the mother. Wiggins v. Keizer, 6 Ind. 252; Furrillis v. Crowther, 7 D. & R.612.

Bastardy proceedings are purely statutory, and the remedy given by the statute must measure the rights and liabilities of the parties. In the case of Moyer v. Bucks, 2 Ind. App. 571, this court held that a personal judgment in a bastardy case upon constructive notice was void, and we regard the doctrine of that case as eminently sound.

But it is insisted on behalf of the appellee that the finding and judgment of the court upon the question of paternity affects the status of the parties only, and to this extent the judgment was authorized, and, as appellant attacks the judgment as an entirety, he should not prevail. A judgment of filiation, in such cases as this, is designed to furnish the basis of a judgment for personal recovery, and it has no other office or function. It does not affect the condition or status of the parties in any other manner. By such judgment the paternal relation is not established between the father and child; the father is not entitled to the custody or services of the child; it does not become his heir, and has no claim 011 liim for maintenance further than is given by the judgment of the court. Such a judgment is personal, and can not be upheld as fixing the liability of the defendant, unless the court had jurisdiction of his person, and this can not be acquired by constructive notice.

Filed March 3, 1892.

These prosecutions are governed by the civil practice, except where different rules are specially provided. The warrant in these cases takes the place of the summons in ordinary civil actions. When the defendant has been arrested and escapes from custody, the court still has jurisdiction of' him, and may hear the cause and enter judgment in his absence. The arrest is equivalent to the service of a Summons, and is sufficient notice. Lucas v. Hawkins, 102 Ind. 64; Patterson v. State, ex rel., 91 Ind. 364.

It follows that judgment in the case before us is without authority and void. It is therefore reversed.