Reed v. State ex rel. Roberts, 66 Ind. 70

66 Ind. 70 | Ind. | 1879

Biddle, J.

On the 4th day of September, 1878, the relatrix filed her complaint before a justice of the peace, charging the appellant with being the father, of her bastard child.

On the 17th of September, 1878, a trial was had, and the defendant discharged. On the 14th day of November, 1878, the State appealed from the judgment of the justice to the circuit court, wherein the appellant moved to dismiss the appeal upon the ground that the appeal had not been taken within thirty days after the rendition of the judgment. The court overruled the motion, and the appellant excepted. A subsequent trial was had, and the appellant found guilty of the charge. The court rendered judgment of affiliation against the appellant and committed him to jail until the judgment should be paid or replevied. He appeals to this court. The sole question in the case is: Did the court err in overruling the motion to dismiss the appeal ?

The bastardy act makes no provision for an appeal; but by that act the proceedings must be commenced before a justice of the peace, and the justice’s act, section 64, provides that “Any party may appeal from the judgment of any justice to * * * the circuit court, within thirty days from the rendition thereof.”

Section 68 provides that such appeals may be authorized by the circuit court, “ after the expiration of thirty days, when the party seeking the appeal has been prevented from taking the same by circumstances not under his control.” But this appeal was not taken under section 68. It therefore must stand upon section 64, which requires an appeal to be taken within thirty days after the rendition of the judgment. This appeal, not having been taken within thirty days, ought to have been dismissed on the motion of the appellant. Walker v. The State, 6 Blackf. 1; Risk v. The State, ex rel., 19 Ind. 152; Glenn v. The State, ex rel., 46 Ind. 368; Dibble v. The State, ex rel., 48 Ind. 470 ; Galvin v. The State, ex rel., 56 Ind. 51.

The j udgment is reversed, and the cause remanded, with instructions to sustain the appellant's motion to dismiss the appeal and to render judgment thereon.