People ex rel. Dumont v. Tompkins General Sessions

19 Wend. 154 | N.Y. Sup. Ct. | 1838

By the Court.

The question in this case is, whether an appeal will lie by the superintendents of the poor from an order or decision of the justices, that the individual complained against was not proved to be the father of the bastard child. The act, 1 R. S. 644, § 13, sub. 1, directs that in such a case the person charged shall be forthwith discharged. It is conceded that as the law stood previous to the revised statutes no appeal would lie in such a case. It cannot be supposed that it was the intention of the legislature to change the law in this respect. The power of appeal is given in as broad terms in the act of 1813 as in the revised statutes; it is given to any person who may think himself aggrieved; but the overseers of the poor, under the act of 1813, were not considered as aggrieved by an order or adjudication that the person charged was not the father. All the details of the act clearly contemplate the appeal as being made from an affirmative order charging the reputed father. The 28th §, 1 R. S. 647, provides that the court to which the appeal may be made shall proceed to hear the allegations and proofs of the respective parties; and the party in whose favor the order was made shall be required to substantiate the same by evidence. In a case like this, the appellee would have to prove the negative fact that he was not the father, in order to substantiate the adjudication.

The principal consideration urged in favor of an appeal by the superintendents in such a case is, that the order or determination of the justices, if not quashed or reversed, would be a bar to any further proceedings against the putative father—■ that he could not again be arrested and examined; that the decision is in the nature of a judgment. This idea is founded upon the 5th sub. of § 13 of the act, which simply makes it the duly of the justices to reduce their proceedings to writing and subscribe the same. It is apprehended this provision was designed merely to perpetuate the evidence of their proceedings, not to change the legal effect and character of their determination. If an order deciding that the person arraigned was not the father, was not a bar to a new complaint and proceedings against him under the act of 1813, which is conceded, such determination, it is apprehended, is not now a bar.

If this order should be quashed by the sessions, they could not make an original order of filiation against the party. They can make such order only when the order of the justice is quashed for seme reason other than on the merits or facts. 1 R. S. 650, § 39. There can be no beneficial result, therefore, from an appeal in such a case ; and upon consideration of all the provisions of the act, it is conceived that the legislature did not intend to change the practice and give an appeal under such circumstances. It is a case for a prohibition instead of a mandamus. Let the order be made accordingly.