67 Ind. App. 1 | Ind. Ct. App. | 1918
The relatrix Florence Gordon, on April 16, 1915, filed an affidavit against the appellant, in which she alleged that she was pregnant with a bastard child. At a later date the relatrix was examined by the justice of the peace before whom the affidavit was filed and her examination shows that she had been delivered of a bastard child about the last of April, 1915, and that appellant was the father of her child. The findings of the justice of the peace show the same facts, and the case was duly certified to the Grant Circuit Court on June 21, 1915. On October
“State of Indiana, ex rel.
Florence Gordon, vs.
Paul Price.
“Come the parties, by counsel, and this cause being at issue is submitted to the court for trial, without the intervention of a jury, and the court having heard the evidence, and upon the statement of the defendant, that he was the father of the bastard child, now finds for the said relatrix that the allegations of her complaint are true, and that the said relatrix had been delivered of a bastard child and that the defendant is the father of said child. It is therefore considered and adjudged that the defendant is the father of the child, of which the relatrix has been delivered. ’ ’
At the same term of court, on November 13, 1915, in the same cause, the following entry appears of record:
“Come the parties herein by their respective counsel, and the following further judgment was rendered by the court. It is further adjudged and decreed by the court that the defendant pay to the clerk for the use of Dr. C. O. Bechtol for surgical operation the sum of one hundred seventy-five dollars to be paid within ninety days, and the defendant committed to jail for one year, unless same is paid or replevied at once.”
Ón December 14, 1915, at the succeeding term of court, the appellant filed with the clerk of the circuit court his appeal bond in the sum of $350, which was duly approved by the clerk, and on November 16,1915, he filed his praecipe for a transcript of the entire record in said cause. In the assignment of errors, the cause is entitled Paul Price, by Oliver Price, his next
Appellees contend that no question is presented by the assignment, for the reason that the record discloses no exception to the action of the court in rendering the judgment, and no motion to modify the judgment; also that every presumption is in favor of the correctness of the judgment rendered; that the evidence is not in the record, and when the judgment is considered in the light of the presumptions in its favor, it is fully authorized by §1032 Burns 1914, §997 B. S. 1881; that in the absence of an affirmative showing by the record to the contrary, this court must presume that the allowance to Dr. C. O. Bechtol was for some purpose authorized by law, and it may have been for a surgical operation upon the child itself in an effort to save its life, or the money may have been so ordered paid to Dr. C. O. Bechtol because the court may have found the mother to be an improper person to receive the same.
Appellant asserts that the record shows that the judgment is absolutely void; that Dr. O. O. Bechtol was not a party to the suit; that there is no finding which authorizes the judgment in favor of Dr. O. O. Bechtol; that the only judgment authorized in a bastardy proceeding is for the support and maintenance of the child and costs of suit, and the judgment here shows on its face that it is not for the support of the child. Appellant also asserts that he has the right to
Appellant, however, concedes the foregoing general rules to be as stated, but asserts that the judgment is void, and that, where such is the case, the injured party on appeal may obtain relief therefrom without first moving to modify the judgment, and without saving an exception to the ruling at the time it was made by the trial court.
This contention requires us to determine whether relief may be so obtained in any case, and if so, then
Section 1026 Burns 1914, §991 B. S. 1881, relating to bastardy, provides in substance as follows: If the defendant is found to be the father of the child, or “shall confess the same he shall be adjudged the father of such child and stand charged with the maintenance and education thereof.” Section 2027 Burns 1914, §992 B. S. 1881, provides that the court shall “make such order as may seem just for securing such maintenance and education to such child, by the annual payment to such mother (or if she be dead or an improper person to receive the same, to such other person' as the court may direct) of such snms of money as may be adjudged proper.”
The entry of October 12, 1915, states that the defendant confessed that he was the father of the child and plainly indicates that both the relatrix and the child were alive. On November 13, 1915, the record shows that the court rendered another, or “further judgment,” in the same case, without any change or substitution of parties, or any showing that the l+elatrix had died. The statute plainly indicates' that, before the court directs payment to any person other than the mother for the benefit of -the child, it must find one or the other of the facts which authorize the designation of such other person. No such facts are found in this case. Though we might infer such finding in and of the judgment in some situations, if it appeared to have been rendered for the benefit of the child as required by the statute, we cannot indulge such inference where the judgment itself indicates that it was rendered for a purpose not authorized by the statute.
Considering the whole record as presented, and the natural presumption that the life of both mother and child continued, there is no basis whatever for presuming that either was dead on November 13, or that the court ordered payment through the clerk to Dr. C. O. Bechtol, for the benefit of the child, because the
The statute primarily authorizes and requires payment to be made to the mother for the maintenance and education of the child. The mother being alive, and there being no finding that she was an improper person to receive such payment, it is not a reasonable presumption to indulge that Dr. Bechtol was substituted in the place of the mother. The language of the judgment, if it does not entirely exclude the possibility of such presumption, at least shows it to be unreasonable.
The judgment requires payment by the defendant to the clerk, and plainly states that it is for the use and benefit of Dr. Bechtol for some surgical operation, but it is not a reasonable inference from the language employed that such payment of the entire amount of the judgment rendered was in conformity with the purposes of the statute aforesaid.
Before the enactment of the present statute relat-, ing to the presentation of questions arising on demurrers to pleadings, it was held that on appeal the question could be first presented by direct assignment of error,' even where judgment had been rendered by
The court had no jurisdiction to render a judgment payable to the clerk for the benefit of Dr. C. O. Bechtol. As supporting this conclusion, see, also, Bartmess v. Holliday, supra; Robinson v. Rogers (1882), 84 Ind. 539, 544; Board, etc. v. Logansport, etc., Gravel Road Co. (1882), 88 Ind. 199, 200; Bristor v. Galvin (1878), 62 Ind. 352, 358; Canfield v. State, ex rel. (1877), 56 Ind. 168, 171.
The judgment dated November 13,1915, is reversed, with direction to the lower court to vacate the same, and cause the case to be docketed for further proceedings not inconsistent with this opinion.
Note. — Reported in 118 N. E. 690.