141 P.2d 540 | Wyo. | 1943
I. Toward the beginning of the trial, counsel for the defendant interposed the following objection: "Comes now the defendant, Millard Myuskovich, and objects to the introduction of any further evidence by the plaintiff for the reason that no sufficient petition, complaint, information or indictment is on file herein on which to base or maintain this, or any other action, under the Uniform Illegitimacy Law; that the defendant is not charged with having had intercourse with the plaintiff at any time within which, and as a result of which, the child of which the defendant is charged to be the father could have been conceived; that the files disclose that there are not sufficient facts alleged in any complaint, petition, information, or indictment on file herein to sustain a verdict of the jury, and a judgment of the court. Wherefore, defendant prays that judgment be entered for the defendant, and that he be discharged from further custody." It is contended at this time that the complaint filed in this case is wholly insufficient to confer jurisdiction upon the Court to try this case. Reliance is placed upon the provisions of section 20-433, Rev. St. 1931, reading as follows:
"Jurisdiction over proceedings to compel support is vested in the district court of the county in which the alleged father is permanently or temporarily resident, or in which the mother or the child resides or is found. It is not a bar to the jurisdiction of the court, that the complaining mother or child resides in another state."
Counsel claim that this section requires the complaint *414 to show either that the defendant or the plaintiff was a resident of Washakie County. It is stated in 49 C.J. 142 that "where jurisdiction depends on residence or citizenship, facts showing the existence of jurisdiction should be alleged." And, in 49 C.J. 143, it is stated that "ordinarily, it is not necessary that the declaration, complaint or petition should contain any allegations with respect to the residence of the parties, but such allegations must be made when the statute so requires, or where jurisdiction depends on the residence of the parties." In determining the effect of section 20-433, supra, we must consider other sections of the statute. Section 20-410, Rev. St. 1931, provides that:
"The complaint shall be in writing, or oral and in the presence of the complainant reduced to writing by the justice. It shall be verified by oath or affirmation of the complaint."
That section shows that the legislature intended the proceedings to be informal. Section 20-411, Rev. St. 1931, provides that:
"The complaint shall charge the person named as defendant with being the father of the child and demand that he be brought before the judge or magistrate to answer the charge."
That section states what is requisite to be stated in the complaint and appears to be the controlling section on the point here under consideration. It makes no requirement as to the residence of the parties, and it has been held that the complaint is sufficient if it complies with the statute. In Robie v. McNiece,
Furthermore, it is stated in 7 C.J. 979 that "notwithstanding a complaint in a bastardly proceeding is informal, yet where the record shows that the defendant made no objection thereto, any informality therein not affecting the merits of the case is deemed waived." In this case, the defendant was present at the examination in the Justice Court, and he cross-examined the complainant, and he made no objection to the complaint. Again, in 10 C.J.S. 152, it is stated that "Where a defendant in a bastardy proceeding secures continuances of the case from time to time, either by agreement or a motion, he thereby waives all questions of jurisdiction." In this case, as already stated, the defendant obtained a continuance in the District Court. The jurisdiction above mentioned, and that referred to in section 20-433, supra, is not, we think, jurisdiction of the subject matter. It relates to the venue of the action. And, it is stated in 67 C.J. 91 that "statutes relating to venue are procedural merely, and not jurisdictional in the strict sense." And, a general appearance waives objection to the venue. 67 C.J. 93. It is necessary in New York, in certain cases, to allege the residence of the defendant. But, it is held that the residence is not strictly a part of the cause of action; that it is a matter relating to the jurisdiction of the person, and may be waived by a general appearance. Yager v. Yager,
II. It is contended that a new complaint should have been filed in the District Court, and that without it, the Court had no jurisdiction to try the case. The statute provides that the examination shall take place in the Justice Court, and that, if the Justice finds probable cause, he shall bind the defendant in bond or recognizance with sufficient security to appear at the next term of the District Court to be held in the county. Sections 20-413-414, Rev. St. 1931. Section 20-414 further provides that "On neglect or refusal to furnish such security, he shall commit the defendant to jail to answer the complaint." This evidently refers to the complaint filed in the Justice Court, and the statute appears to contemplate that the case shall be tried in the District Court upon that complaint. At least no provision is made requiring a new complaint to be filed in the District Court. The practice in the various jurisdictions appears not to be uniform. In some states the trial in the District Court is had upon the complaint filed in the Justice Court; in others, a new complaint is filed. 7 C.J. 985; 10 C.J.S. 165. It is said in 7 C.J. 981, that "The making of a proper complaint before a justice of the proper county and the holding to trial by such justice, either by commitment or by bond to appear in the proper court, are the means by which the trial court obtains jurisdiction to try the cause; and the filing of the transcript and the papers in the clerk's office completes the jurisdiction." It would seem, accordingly, that a new complaint was not necessary to confer jurisdiction. Moreover, the case at bar was tried upon the complaint filed in the Justice Court. No question was raised in the lower court, so far as we can find, that a new complaint should have been filed. If a new complaint should have been filed in the District *418 Court, the lack thereof could not be considered more than an irregularity by reason of which the defendant was not prejudiced.
III. It is further contended that the complaint does not state a cause of action, aside from the want of allegation of residence, in that it does not appear that the child was born out of wedlock. The proceedings under the Uniform Illegitimacy Act, contained in sections 20-401 to 438, both inclusive, relate to children born out of wedlock, and the term "child" as used in section 20-411, supra, refers, as stated in section 20-401, supra, to a child born out of wedlock and not legitimated. Hence, to state a cause of action under section 20-411, supra, it is necessary that the complaint should show that the child in question was born out of wedlock, and that the defendant is the father thereof. The complaint should aver all the facts necessary to sustain the proceeding. 10 C.J.S. 165. At the same time, it must be borne in mind that the statute contemplates a proceeding not too technical. Furthermore, an examination reduced to writing is had in the Justice Court, by which the facts are developed, and in which the person charged with being the father of the child has the right to cross-examine the complainant. And, in this case, the defendant, in fact, cross-examined the plaintiff. The importance of these provisions and this right was mentioned in State v. Brathovde,
IV. As heretofore mentioned, the Court ordered that the defendant should pay to the plaintiff the sum of $300 per annum until the child should become sixteen years of age, provided that if the defendant should be inducted into the Army of the United States, he should pay $200 per annum. It is contended that the amount allowed is excessive. We do not think so. Defendant is an able-bodied man about thirty years of age. He has, as stated in the brief of his counsel, now been inducted into the Army. The Servicemen's Dependants' Allowance, Act of Congress of June 23, 1942 (56 United States Statutes At Large, pages 382-385) provides that an enlisted man who has no wife but one child shall pay for the child $22.00 per month, to which the Government will contribute $20.00 per month, making $42.00 per month in all. The term child, as used in the Act, includes "an illegitimate child, but only if the man has been judicially ordered or decreed to contribute to such child's support; has been judicially decreed to be the putative father of such child; or has acknowledged under oath in writing that he is the father of such child."
V. The defendant filed a motion for a new trial and amended motions, partially on the ground of newly discovered evidence. Affidavits of one A.W. Peterson and Ralph Lindsey were attached to the motion, relating in the main to the movements and whereabouts of the defendant on December 30 and 31, 1939 and January 1940. The defendant, sustained in part by his sister, had testified in regard to these facts, so that most of the testimony of the foregoing parties would have been cumulative, which would not require the granting of a new trial. Attached also was the affidavit of J. William Tuttle, in which he states that he saw *422
the complainant in bed with one Bill McDonald in January 1940 at the home of Dan McDonald in Worland. But, the record contains an affidavit of D.L. McDonald in which he states that Bill McDonald is his son, and that he knows of his own personal knowledge that Bill McDonald was not in Worland in the months of December 1939 and January 1940. The granting of a new trial is largely in the discretion of the trial court. Wells v. McKenzie,
VI. The trial court allowed the plaintiff the sum of $73 to pay the expenses of her pregnancy and confinement. Counsel claim that "there is no provision for any such item to be made a part of the judgment." Section 20-401, supra, provides that "The father is also liable to pay the expenses of the mother's pregnancy and confinement." This clearly authorized the court to make the order which it did in this connection.
Finding no reversible error in the record, the judgment of the trial court is affirmed.
Affirmed.
KIMBALL, Ch. J., and RINER, J., concur. *423