75 N.W. 790 | N.D. | 1898
This action was instituted under the provisions of the statute regulating bastardy proceedings. See Revised Codes, sections 7839-7856. The complaint and warrant are framed in conformity to the requirements of the statute, nor does the defendant contend that either the complaint or warrant is insufficient in substance or form.
After his arrest upon the warrant, the defendant gave bail for his appearance at the next ensuing term of the District Court, and thereafter all proceedings in the action, prior to its appeal, were had in the District Court. Issue was joined by answer to the complaint, which denied all of its material allegations. A jury trial was expressly waived, and the action was tried to the court as a civil action. As facts, the court found that the child of the complainant, when born, was fully developed, and that the defendant was not the father of such child. A statement of the case, embracing the evidence and proceedings had at the trial, was settled below, and the whole case is before this court for trial anew.
In this court the respondent has filed a motion to dismiss the appeal, which motion was submitted by counsel in connection with the entire case on the merits. The grounds of the motion may be condensed as follows: First, that the statement does not contain a sufficient specification showing wherein the evidence is insufficient to justify the particular findings of fact which are
These two grounds are wholly untenable, and furnish no basis for a motion to dismiss an appeal, from the District Court to this court. The entire absence of any specifications of error in a statement of the case, or of any assignments of error in the brief of the appellant, would furnish no ground whatever for dismissing an appeal to this court. Such defects in procedure have reference only to the questions which may be raised upon the record after the case reaches this court. The appeal is taken and perfected by the notice and undertaking as prescribed in the statute governing appeals. An appeal to this court will not be dismissed, and never has been, on the ground of any irregularities or defects which the record discloses in the preparation of the statement of the case or the abstracts or briefs filed in this court. It is true that rule 29 of the amended rules of this court (6 N. D. xxvii, 74 N. W. Rep. xi.) authorizes the court, at its discretion, to dismiss an appeal for a noncompliance with the rules of court within the “time prescribed.” Under this rule, a motion to dismiss an appeal will lie for dilatoriness in serving abstracts and briefs, but does not lie for imperfections in either.
One further ground of the motion is urged, viz. that the law under which the action was instituted is unconstitutional, and hence that all proceedings had under it are null and void. We are of the opinion that this ground of the motion to dismiss is likewise untenable. It is quite true that an action based upon a statute which is wholly unconstitutional will be dismissed whenever the fact is so determined. It is, however, in many cases, very difficult to determine whether a statute is or is not in violation of organic law. The question is strictly one going to the merits, whereas a motion to dismiss an appeal is purely preliminary, and goes upon the theory that for some reason the 'court is without jurisdiction to determine the merits. Hall v. Superior
But counsel lays greatest stress upon the point that the justice, as he claims, is arbitrarily required by the statute to issue a warrant, and is not permitted to enter into any inquiry as to probable cause for issuing the same before its issue. This argument ignores certain important requirements of the law. The warrant does not issue upon the mere arbitrary will of the magistrate. There are certain definite prerequisites to its issue under the statute: First, there must be a complaint in writing, under oath, filed with the magistrate; second, such complaint is required to be in a prescribed form; third, the averment of the facts necessary to constitute the cause of action must be positive, and not made on information and belief, and must be made by the female who has or will give birth to the ■ child. Until such complaint is
As we have stated, the case comes before us for a trial de novo, under the constraint of the statute which does not permit us to grant a new trial on the ground of the insufficiency of the evidence. We are compelled, therefore, to either affirm the judgment of the court below, or, on the other hand, reverse the same, and direct the entry of a judgment against the defendant, and thereby adjudge that he is the father of the child. With this alternative before us, while we have some doubts as to the preponderance of the evidence, we conceive it to be our duty to resolve our doubts in favor of that view of the evidence which was taken by the ' court below, where the witnesses appeared in court, and where their demeanor could be more carefully weighed and considered than it is possible in this court to do.-
Our conclusion is that the judgment of the District Court must be affirmed.