253 N.W. 749 | N.D. | 1934
The relator Alice Triggs is an unmarried woman. She is a resident of the state of South Dakota. In February, 1933, within the state of South Dakota she was delivered of an illegitimate child. This child was begotten within the state of South Dakota. The respondent, Fred Zimmer, is a resident of Ramsey county, North Dakota. In June, 1933, Alice Triggs being then temporarily in Sargent county, North Dakota, made complaint before a justice of the peace of that county pursuant to the provisions of chapter 5A of the Code *411 of Criminal Procedure, being §§ 10,500a1-10,500a37, both inclusive, 1925 Supplement to the Compiled Laws of 1913, charging the respondent Zimmer with being the father of her child. Thereupon the justice issued his warrant for the arrest of the said Zimmer pursuant to the terms of § 10,500a11. The sheriff executed this warrant in Ramsey county and took Zimmer into his custody under it. Thereupon Zimmer petitioned the district court of Ramsey county for a writ of habeas corpus. The court issued the writ and he was discharged on the ground that the complainant, Alice Triggs, was not a resident of the state of North Dakota and, therefore, no court within the state had jurisdiction to determine the question of the paternity of her illegitimate child and provide for or require the father of said child to provide for its maintenance and support. Thereafter the relator applied to this court for an appropriate writ in the exercise of its supervisory power to review the action of the district court of Ramsey county in discharging Zimmer.
On the showing as made by the relator this court issued an order to show cause why a supervisory writ should not issue. On the return day the respondent Zimmer appeared by counsel and moved that the application be dismissed and the order to show cause vacated, the other respondents making no appearance.
The respondent's first contention is that this court has no jurisdiction to review the action of the district court in discharging him on habeas corpus. This contention cannot be sustained. See State ex rel. Bismarck v. District Ct., ante, 399,
The district court held, and the respondent now here contends, that the Illegitimacy Act, chapter 5A of the Code of Criminal Procedure, supra, affords no remedy to the mother of an illegitimate child and her child under circumstances such as are disclosed in this case as against the father of the child who is a resident of the state.
At the common law the father of a bastard child was not legally responsible for its maintenance and support notwithstanding his natural and moral duty to maintain and support it. Many courts, however, have held the bastardy statutes "convert the moral obligation of the father of an illegitimate child to support it into a legal duty enforcible *412
in the courts." State v. Etter,
Consistent with the theory that the obligation of the father to support his bastard child springs from the paternal relation and the natural and moral duty incident thereto, it is immaterial whether the child was begotten or born within the state or whether the mother and child, or either of them, are residents of the state where the legal obligation is sought to be enforced. See State v. Etter,
It follows that the district court erred in discharging the respondent.
BURKE, CHRISTIANSON and BURR, JJ., concur.
MOELLRING, J., did not participate.