State ex rel. May v. Shepherd

1 Ohio N.P. (n.s.) 194

Opinion

Allread, J.

This is a proceeding in bastardy and the complainant and child both béing non-residents of Ohio, a motion is made to require her t'o give security for costs. The code of civil procedure,' Section 5340, requires the plaintiff, if a non-resident of the county, to give security for costs. Does this section apply here ?

Proceedings in bastardy partake in some respects of the nature of criminal, and in other respects, of civil proceedings. The complaint is by affidavit; the process is by arrest; the verdict is upon the guilt of the defendant; and execution of the judgment is awarded against the person of the defendant. In all other respects, however, ihe action is civil in its character.

The judgment is for the support of the child and is payable to the complainant.

The code of civil procedure applies as to the competency of witnesses (Carter v. Krise, 9 O. S., 402); and as to continuances (Porter v. State, 23 O. S., 320). The prosecution of the ease rests in her control as in ordinary civil cases, except where limited by the statutes, and the limitations so made are with reference to the public interests. If a compromise is made, a bond must be given to save the public from the support of the child. In case the complainant fails to prosecute, certain public officers on behalf of the public, if interested in the support' of the child, on motion may begin or continue the prosecution. In all other respects her control of the case is as complete as in any civil case.

The bastardy act is not complete in itself on the question of costs. It' only provides for costs in two instances:

Robeson & Yount, for the defendant.

(1.) Where there is a compromise.

(2.) When the defendant is adjudged guilty.

The question of costs in bastardy proceedings not being completely provided for in the act itself must be governed by some general statute; and from the general character of the proceedings the civil chapter on costs will control.

Inasmuch as the complainant is a non-resident an order will be made requiring her to give security for costs and the proceedings will be stayed until such security be given.