157 P. 1141 | Cal. Ct. App. | 1916
This is an action brought by the plaintiff through his guardian ad litem to compel his father, the defendant, to support him, he being a minor child. The action is founded on section
In the trial court a demurrer to the complaint was overruled, whereupon the defendant having refused to answer, his default was entered; and after hearing testimony introduced on behalf of the plaintiff the court rendered judgment against the defendant, who now prosecutes this appeal therefrom.
The evidence showed that the plaintiff was born in San Francisco in the year 1913; that he is the illegitimate child of the defendant and a young woman who is employed as a *263 domestic; that when employed she earns $35 per month; that the child is boarded out and that the sum of twenty dollars per month is required for his board and lodging, which sum does not cover, as we understand the record, other expenses such as for clothing and medical attendance. The evidence also shows that the defendant is a hotel-keeper, owning property of the value of between three thousand dollars and four thousand dollars and having an income of one hundred and fifty dollars to two hundred dollars per month, and that he has contributed nothing toward the support of his child. Upon the conclusion of the case the court determined that $25 per month should be contributed by the defendant for the support, maintenance, and rearing of the child, and the judgment provided for this payment.
There is no merit in the point that the mother of the child, being alive and sane, should have brought the action in her own name. The section reads in the alternative — "by his mother or guardian"; and the mother not having chosen to bring the suit herself, it might be brought and maintained by the child through his guardian, either general or ad litem. (Code Civ. Proc., sec. 372; Lewis v. Lewis, 22 Cal.App. Dec. 607, [decided by this court, third appellate district, March 16, 1916]; In re Cahill,
Equally without merit is the point urged that the court imposed the whole duty of the child's support upon his father, the defendant. With the pleadings and facts as to the financial ability of the respective parents before it, the court made such a decree as under all the circumstances of the case seemed to it meet and proper; and we are not in a position, nor are we disposed, to interfere with the conclusion of the trial court upon that subject.
The appellant makes in all seventeen points for the reversal of the decree, but those discussed by us are the ones that seem to possess the most merit. Chief of these is the contention that the complaint fails to state facts sufficient to constitute a cause of action.
The allegations of the complaint thus assailed show that the parents of the child were not married at the time of his birth and that they have not since that time been married; and defendant argues that for aught that appears in the complaint the defendant and the mother of the child may *264 have been married at the time the child was conceived, and that therefore he is not illegitimate.
While, perhaps, the complaint, measured by the strictest rules of pleading, might be regarded as ambiguous and uncertain in the respect pointed out, still we think it can hardly be said to wholly fail to state sufficient facts. It is certain that it sets forth facts enough to enable the defendant to sufficiently understand the issues tendered by the pleading and to meet it by proper and full denials. Under the allegations of the complaint the defendant is the father of the plaintiff, and whether legitimate or illegitimate, defendant is liable for his support. We would leave the discussion here were it not a fact that the remedies provided by section
The judgment is affirmed.
Lennon, P. J., and Richards, J., concurred.
A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 8, 1916. *265