Duhamell v. Ducette

118 Mass. 569, 1875 Mass. LEXIS 435

• Court: Massachusetts Supreme Judicial Court
• Decided: October 23, 1875
• Status: Published

Opinion

Endicott, J.

The respondent was required by the. Central District Court of Worcester to file a bond in the usual form to appear before the Superior Court. No objection to the proceedings was taken in the District Court. The case was duly entered in the Superior Court, and at the first term the respondent appeared, made answer to the merits, and asked for a trial by jury. At a subsequent term, and before the trial, he moved to dismiss, on the ground of certain irregularities in taking the complaint, and in other proceedings in the District Court. This motion, as well as a motion in arrest of judgment, was properly overruled.

The Superior Court has original jurisdiction in these cases, and the proceedings before the inferior tribunal are merely to compel the appearance of the respondent in the Superior Court, where the issue is to be tried. And the respondent cannot, after appearance, object to irregularities in the proceedings in the inferior court. It was held, on a writ of error to reverse a judgment of the Superior Court in a bastardy case, that it was too late for the respondent, after appearance, to object that the justice of the peace had no jurisdiction to act under the warrant. Thompson v. Kenney, 110 Mass. 317. Gen. Sts. c. 129, § 79. McCabe v. Dowd, 7 Allen, 477.

The respondent has no ground of exception to the refusal of the judge to rule that, if the jury believed the respondent was not present at the time and place testified to by the complainant, they should find him not guilty. It was for the jury to decide, upon all the evidence, whether the respondent was the father of the child. Murphy v. Spence, 9 Gray, 399. Kennedy v. Shea, 110 Mass. 152. Bassett v. Abbott, 4 Gray, 69.

Exceptions overruled.