Robie v. McNiece

| Vt. | Mar 15, 1835

The opinion of the court was delivered by

Williams, Ch. J.

The trial in the county court was on a complaint for bastardy. Before trial, the complainant moved for and had leave to amend her complaint. There was after verdict a motion in arrest, which was overruled, It is contended on the part of the complainant—

1. That the complaint was sufficient without any amendment.

2. If not, that the defects are cured by verdict.

3. That the county court had authority to amend.

It is in the first place necessary to determine whether the proceeding to procure an order of filiation on a complaint against the reputed father of a bastard child is a civil or criminal proceeding, as the determination of the other points must in some measure be governed by the views which we take of this. It is true the proceedings assume the form which is used in criminal cases. There is a complaint, oath, warrant, order to apprehend and bring the person charged before the session, or justice of the peace, and abide the order of court. The object, however, is not for punishment. It is to ascertain the father and compel him to contribute to the support of the child, if he is adjudged to be the father. The whole proceedings cease, if the woman dies or is married before the child is born, or shall miscarry. All this shows that punishment is not the object of the prosecution. The proceedings probably assumed the criminal form from the statute of Elizabeth, where bastardy was treated as an offence, and the object of the proceeding was two-fold, viz. for support of the child, and for punishment of the father. Furtbermore, it is considered as a civil suit in all the neighboring states. Judge Reeve so considers it. Chief Justice Swift says so expressly. Depositions are admitted, bonds are given, plaintiff or complainant can withdraw or release prosecution, unless the overseers control, and even in that case, site can release, if she gives security to indemnify the town. It being considered as a civil proceeding, it has been held that the complaint may be amended.

Considering it as a civil suit, and subject to all the proceedings which are had in civil suits, we must treat the proceedings which have been bad in this case in that light, .in examining the questions which have been raised.

The complaint was agreeable to a form long known, and is not lightly to be set aside, unless the statute is imperative. All that the statute requires is, that the mother shall charge the person in writing and on oath with having gotten her with child and being the father of the child. It is sufficient that she appear before the justice as a single woman, and in that character make her complaint. The fact that she is a single woman is no part of the complaint, to which she makes oath, and of course it is not necessary that a direct allegation to that effect should be made and sworn to by her. It is more doubtful whether she should not declare herself to be with child, or that she has been delivered of a child, though the statute only requires her to swear, that the person charged has gotten her with child, and is the father of such child. The more correct form would undoubtedly be, to insert this allegation directly ; but we are not prepared to say that either of these defects would be fatal to a complaint. The complaint sets forth that the defendant did beget the child, that he is the father, and that the child, when born, will be a bastard, and by inference necessarily charges that she was pregnant at the time of making the charge. But in this case a verdict has been found, which determines that the child was a bastard, and that the defendant was the father. If, then, the facts charged in this complaint were defectively stated, and even if it would not have stood before a special demurrer, yet we consider the verdict has cured any defects, if there were any, in this proceeding, even as the complaint • appeared before any amendment was allowed. This renders it unnecessary to consider the question in relation to the amendment. But as this is made a point in the cause, we have also considered this question.

Amendments are usually in the discretion of the court. The exercise of this discretion is not re-examinable by a court of error. If an inferior court permit an amendment in a case where none is allowed by law, the exercise of that power may be a ground of error, when there would be no such ground, if the power was improperly or injudiciously exercised, in a case where there was no question as to the right to exercise it.

Having already considered that a proceeding against the father of a bastard child to obtain an order of filiation and for the support, as a civil suit, it follows that the proceedings were subject to amendment like other civil suits. It has been so considered in Connecticut and in Massachusetts. Hence the county court may, in their discretion, permit amendments under such rules and terms as they shall think are required by the justice and equity of the case. If a new fact is introduced by the amendment, to which it is necessary that a new oath should be taken, the oath should be administered anew. But if the amendment is only for the purpose of the introduction of a fact omitted through accident or carelessness, and to which the oath of the complainant was not necessary, it may be permitted, as in other cases, even on trial. The object of the oath, in the first place, is to obtain a warrant. It is only necessary therefore to swear as to the begetting the child and as to the father. There is no further examination as to other particulars, nor any cross-examination at this time. This is reserved for the trial in in the issue to be formed thereafter. Hence when the justice certifies that the complaint is sworn to, it can only mean that it is sworn to in those particulars. An amendment like the one made in this case is only introducing facts into the complaint, to which it was not necessary that oath should have been made, and was properly permitted. The court observed a good degree of caution, (though I apprehend it was not necessary,) in requiring the approbation of the justice; and it was at least judicious and proper to prevent the complaint from appearing to contain facts sworn-to by the mother, if she did not so make oath to them. It may be further remarked, that there is nothing appearing in this case to show that the amendment was not made either by the complainant herself, or at least with her approbation or consent.

On the whole, we see nothing in this case but that the proceed-ingsjof the county court were in every particular according to law, and their judgment must be affirmed.