39 Ind. 352 | Ind. | 1872
There was a prosecution for bastardy commenced on the 20th day of February, 1868, before a justice of the peace against the appellant. After an examination of the charge, the justice of the peace recognized the defendant to the circuit court. After one or more continuances, on the 29th day of September, 1868, in the circuit court, the following entry was made:
“ Comes now the relator in person, and by A. F. Shirts, her attorney, and comes also the defendant, by Thomas J. Kane, his attorney; and the relator, Roxana Hines, in person, comes into open court and acknowledges that pro-, vision has been made by the defendant to her satisfaction for the maintenance of the bastard child named in the relator’s complaint. It is therefore considered by the court that this cause be dismissed at defendant’s costs. It is therefore considered by the court that the relator recover of the defendant all her costs and charges in this behalf by her paid, laid out, and expended, taxed at-dollars and-cents.”
The defendant demurred to this complaint, as it is called, on the ground that it did not state facts sufficient, but his demurrer was overruled, and he excepted. He then answered, first, the general denial; second, that the consideration of the entry of satisfaction was the payment of four
The relator demurred to the second and third paragraphs of the answer, on the ground that neither of them contained facts sufficient to constitute.an answer, and her demurrers were sustained, and the defendant excepted. The issues ■were tried by a jury, and there was a verdict as follows: “We, the jury, find for the plaintiff.” In answer to interrogatories, the jury further found as follows:
“•First. Did the plaintiff demand marriage at the hands .of the defendant before the commencement of this suit? if •so, when and where? Answer. We don’t know.
“Second. Did the defendant, on or about the 13th day of August, pay the plaintiff the sum of two hundred dollars? if so, on what account did he make such payment? Answer. We don’t know.”
The defendant moved for a new trial, but his motion was overruled, and he excepted. .The court rendered judgment, setting aside the entry of satisfaction and the judgment thereon dismissing the prosecution, and granting a new trial of said cause, requiring the defendant to enter into a recognizance to appear at the next term, continuing the cause until the next term, and rendering judgment for the costs of said proceeding against the defendant.
The evidence is in the record by bill of exceptions.
The errors assigned involve the correctness o,f the rulings of the court, first, in holding the complaint sufficient; second, in holding the answers insufficient; third, in not rendering judgment for the defendant on the verdict; and, fourth, in refusing to grant a new.trial.
The complaint makes no case of fraud. It sets up, as the consideration of the compromise, the promise of the defendant that if the relator would make the entry and dismiss the action, he would marry her, at a designated time, and thus render the child legitimate and secure its support; and alleges a failure on his part to perform this promise. This does not constitute fraud, according to any definition or adjudication with which we are acquainted. Fouty v. Fouty, 34 Ind. 433. If, instead of a promise to marry the relator at a fixed time, the defendant -had promised to pay her a sum of money at a designated date, and had failed to make the payment, could it be supposed that the failure to pay the money would revive her right to prosecute under the statute for the support of the child ? It was not the marriage which was the consideration of the compromise, for that was not to take place until a subsequent day; but it was the promise of the defendant to marry her which was the consideration for which, she agreed to, and did, dismiss the action. If one sell property on credit, to be paid for at a future time, and, on his part,.execute the contract by the delivery of the property, can he, if the money shall not be paid at the time agreed upon, - recover the property back from the party to whom it was delivered, on the ground that the failure to pay constituted a fraud ? We think not. The promise to marry, under such circumstances, and for such a consideration, would undoubtedly be valid, and would support an action in favor of the relator. The statute gives her
When we' come to look at the paragraphs of the answer to which demurrers were sustained, the rulings of the court seem wholly indefensible. In the second paragraph it is alleged that the consideration of the agreement was that the defendant should pay her four hundred dollars in money for the support of the child, and that the one-half of the amount was paid at the date of the agreement, and the other half afterward. Her receipt for the money is filed with the paragraph of the answer. We see no reason why this was not a good defence to the action, and think the demurrer to it was improperly sustained.
The third paragraph alleges that the relator instituted an action on the marriage promise mentioned in her complaint, and that she recovered thereon the sum of fifteen hundred dollars. If this be true, then she has got, by means of the compromise, resulting from her action for the breach thereof on the part of the defendant, fifteen hundred dollars. Taking the allegations of the two paragraphs together, and they show that she received, in money, four hundred dollars, and recovered her judgment for fifteen hundred dollars, making, in all, nineteen hundred dollars. If it is true, as alleged in the third paragraph, that she sued on the promise to marry, which was the consideration for the compromise, and recovered a judgment thereon, she cannot now repudiate that agreement, and prosecute a suit under the statute for further support for the child. If it could be supposed that, in cases of this kind, something may be given punitive in its nature
The judgment is reversed, with costs; and the cause is remanded, with instructions to sustain the demurrer to the complaint.