Fisher v. State, Ex Rel. Morrow

74 N.E.2d 743, 117 Ind. App. 552, 1947 Ind. App. LEXIS 182

• Court: Indiana Court of Appeals
• Decided: September 30, 1947
• Docket: No. 17,646.
• Status: Published

Opinion

Draper, J.

This action was brought against the appellant by the “State of Indiana, ex rel. Evelyn Morrow, by Dell Morrow, her next friend.” The complaint seeks to establish the appellant as the father of the illegitimate child of Evelyn Morrow, who is alleged to be 20 years of age; and for the support of said child.

The appellant demurred to the complaint on the ground that on its face it discloses the cause of action to reside in Evelyn Morrow, and not in the plaintiff. He assigns error in the overruling of the demurrer.

An action of this character is created and conferred by statute. The rights of the parties are given, controlled and limited by statute, and the mode of proceeding therein prescribed must be pursued. Reeves v. The State ex rel. Ellis (1871), 37 Ind. 441; Beckett v. The State ex rel. Rothert (1892), 4 Ind. App. 136, 30 N. E. 536; Brown v. State ex rel. Pavey (1932), 94 Ind. App. 669, 182 N. E. 263. This case is governed by ch. 112 of the Acts of 1941.

Section 9 of the Act, being § 3-631, Burns’ 1946 Replacement, provides that an action to compel support may be brought by the mother, or if she be insane, of unsound mind, a minor, or under any other disability, by her guardian or next friend. We find ,no statutory authority for the prosecution of such an action in any other manner.

Since the complaint pleads a cause of action maintainable only by another, the demurrer should have been sustained. The Lake Shore and Michigan Southern Railway Company v. Foster (1885), 104 Ind. 291, 4 N. E. 10; State ex rel. City of Loogootee v. Larkin (1941), 218 Ind. 382, 33 N. E. (2d) 112; Michael v. Mitchell (1947), 118 Ind. App. —, 73 N. E. (2d) 363.

Reversed and remanded with instructions to sustain demurrer.

Note. — Reported in 74 N. E. (2d) 743.