33 N.W.2d 285 | S.D. | 1948
Maxine Wollock, married to Lee Wollock in June 1944, and still his wife, brought suit against the defendant seeking to have him declared to be the father of a child born to her in March 1947, and seeking also a judgment compelling the defendant to support said child.
Upon application therefor by Mrs. Wollock the trial court, over defendant's objections, entered an order requiring defendant to submit to a blood test. From such order leave was granted to defendant to appeal. His assignment of error challenges the propriety of the order of the trial court upon the ground that the same compels him to give evidence which may tend to incriminate him and violates the code provisions hereinafter referred to.
The motion of respondent upon which the trial court entered the order we now review simply moves the court for an order requiring appellant "to submit to a blood test to determine whether or not the defendant, James Brigham, is the father * * *". The affidavit in support of said motion states in substance the issue of paternity as presented by the pleadings and the willingness of the plaintiff and her child to submit to blood tests and demands that the defendant submit to a test "to determine the paternity of said child". The affidavit then nominates a physician to conduct the tests and refers to SDC 36.0602. It is readily observed that plaintiff's application was predicated upon the erroneous assumption that paternity may be established by blood tests.
In State v. Damm,
The paternity of the child cannot be determined by testing and classifying blood from the defendant and comparing the same with like tests of blood of respondent and the child. Such tests may in some instances prove nonpaternity. They never establish paternity. Numerous cases involving the question are collected in 163 A.L.R. 939, and the annotations superseded thereby. See also 10 C.J.S., Bastards, § 82 and 1948 cumulative annual pocket part. In Smith v. Smith,
All the Judges concur.