Hughes v. McCormick

412 P.2d 613, 17 Utah 2d 372, 1966 Utah LEXIS 483

Opinions

HENRIOD, Chief Justice.

This case was instituted with a complaint that simply said defendant was the father of plaintiff’s children, — nothing else. The trial court is affirmed.

An answer was filed stating as a defense that plaintiff was married to someone else. Plaintiff did not deny this, which she could have done for nigh on to a year, at any time before pre-trial, by affidavit or otherwise, — but which she didn’t.

Defendant was right in citing Holder v. Holder¹ with respect to the presumption of legitimacy if a child is born in wedlock, —which was the issue joined here, — and admitted by plaintiff’s failure to refute it before or at pre-trial. Therefore, she was out of court for failure to sustain her burden, by pleading, or proffer of proof on an essential element of her cause of action. After issue joined it was her duty to show nonaccess to her husband, and it was in no way incumbent upon defendant to show access or anything else until plaintiff sustained the burden of proof.

To decide otherwise is to misinterpret the rules of civil procedure, which would mean that a litigant should not plead anything, but wins for the very reason that he presented nothing to the court by way of pleading, affidavit, deposition or anything else to substantiate his claim.

McDonough and callister, JJ., concur.

1 . 9 Utah 2d 163, 340 P.2d 761.