Allen Ex Rel. Allen v. Hunnicutt

52 S.E.2d 18, 230 N.C. 49, 1949 N.C. LEXIS 572

• Court: Supreme Court of North Carolina
• Decided: March 2, 1949
• Status: Published

Opinion

BaeNhill, J.

Tbe defendant’s exception to tbe refusal of tbe court to dismiss tbe cause as in case of nonsuit presents for decision this question : May an illegitimate child maintain a civil action to establish its paternity and compel its putative father to furnish it support when tbe right of action is based solely upon the alleged relationship? Tbe answer is no.

Under tbe common law an illegitimate child is nullius flius, and its putative father is under no obligation to support or contribute to its support. It has no father known to tbe law, no distinction being made between a reputed father and an admitted father. 7 A.J. 627. Accordingly, tbe courts in states which have adopted the common law have held in almost every case in which the question has been raised that without legislation the father of an illegitimate child cannot be required to provide for its support. Kimbrough v. Davis, 16 N.C. 71; S. v. Boston, 102 P. 2d 889 (Okla.); Brown v. Brown, 32 S.E. 2d 79; Beebe v. Cowley, 156 NE 214 (Ohio); Hoffer v. White, 4 NE 2d 595 (Ohio); S. v. Lindskog, 221 NW 911 (Minn.); Law v. S., 191 So. 831 (Ala.); Carlson v. Bartels, 10 NW 2d 671 (Neb.); Kordoski v. Belanger, 160 A. 205 (B.I.); Kessler v. Anonymous, 18 N.Y.S. 2d 278; Anno., 30 A.L.R. 1069; 7 A.J. 673.

“It is universally held that a statute must be found imposing the obligation on the putative father before he can be charged with the child’s support.” Hurst v. Wagner, 43 P. 2d 964 (Wash.).

This does not mean that an action based on contract may not be maintained in the absence of a statute. In such case the right of action is bottomed on the obligation of the contract and not on the moral or natural obligation to support. Kimbrough v. Davis, supra; Burton v. Belvin, 142 N.C. 150; Sanders v. Sanders, 167 N.C. 319, 83 S.E. 490; Thayer v. Thayer, 189 N.C. 502, 127 S.E. 553, 39 A.L.R. 428, Anno. p. 434; Bedmon v. Roberts, 198 N.C. 161, 150 S.E. 881; Conley v. Cabe, 198 N.C. 298, 151 S.E. 645; Hyatt v. McCoy, 195 N.C. 762, 143 S.E. 518; Green v. Green, 210 N.C. 147, 185 S.E. 651.

But the plaintiff insists that we have said in at least two cases that “there is a natural obligation to support even illegitimate children which the law not only recognizes, but enforces.” So we have. Sanders v. Sanders, supra; Green v. Green, supra. But in each of those cases the action was being prosecuted by a legitimate child. Furthermore, we did not say and have not said the obligation may be enforced in an action instituted and maintained by an illegitimate child. As stated in Burton v. Belvin, supra, the natural obligation of the father to support will he enforced under the statute recognizing the obligation and imposing the duty. G.S. Chap. 49; G.S. 7-103.

G.S. 14-322 relates only to legitimate children. An illegitimate child is not protected thereby. S. v. Gardner, 219 N.C. 331, 13 S.E. 2d 529.

The remedy provided by statute for the enforcement of a right created by statute is exclusive. A party asserting such right must pursue the prescribed remedy. R. R. v. Brunswick County, 198 N.C. 549, 152 S.E. 627; Bar Asso. v. Strickland, 200 N.C. 630, 158 S.E. 110; Maxwell, Comr. v. Hinsdale, 207 N.C. 37, 175 S.E. 847; Rigsbee v. Brogden, 209 N.C. 510, 184 S.E. 24; Padgett v. Long, 225 N.C. 392, 35 S.E. 2d 234; Moose v. Barrett, 223 N.C. 524, 27 S.E. 2d 532; S. v. Boston, supra; Kordoski v. Belanger, supra; Carlson v. Bartels, supra; Anno. 30 A.L.R. 1070.

“Where a right is given and a remedy provided by statute, the remedy so provided must he pursued.” Moose v. Barrett, supra.

The duty of a putative father to support his illegitimate child was not created primarily for the benefit of the child. The legislation is social in nature and was enacted to prevent illegitimates from becoming public charges. The benefit to the child is incidental. Such rights as it may have must he enforced under the statute and in accord with the procedure therein prescribed. G.S. Chap. 49, G.S. 7-103.

The judgment below is

Eeversed.