State ex rel. Patterson v. Pickering

136 N.W. 105, 29 S.D. 207, 1912 S.D. LEXIS 161

• Court: South Dakota Supreme Court
• Decided: May 7, 1912
• Status: Published

Opinion

WHITING, J.

[1] This was an action brought under chapter 37 of the Code of Civil Procedure, known as the basta-rdy statute charging defendant with being the father of the illegitimate child of one Florence Patterson, and seeking a judgment requirmg such defendant -to contribute to the support of such -child. The action was brought more than three years and less than six years after the birth of such child. The defendant pleaded the bar bf the statute of limitations, claiming -that section 86 of the Code of Criminal Procedure, 'as amended by chapter 129, Raws 1907, applies to an action under s-aid chapter 37. Said section reads as follows: “Section 86. In all other cases an indictment' or information for a public offense and all proceedings of a quasi-criminal or penal nature including -the forfeiture of -existing -rights shall be filed within three years after the -commission of the offense or crime made -the bases of -the -proscution or proceeding; and be it further enacted, that this act -shall apply to all -such offenses and crimes as have heretofore taken place and to -all pending proceedings in any of the courts of this state.” The trial court held that such section did not apply; that the action was not ’ barred, and, upon -the verdict of the jury, rendered judgment against defendant. Prom such judgment, defendant has appealed; the sole question presented upon the appeal being whether the above holding of the trial -court was correct.

It is the -contention of appellant that this action is, in its nature, quasi criminal; respondent insists that it is purely civil, and that therefore section 86, supra, has no application thereto. We are of the opinion that respondent is -correct.

[2] To determine the nature of an- action, we should look, not so- much to the -method of procedure to- be followed, as we should to the end to be attained. This action is one brought, not in any sense to punish the defendant for an offense, legal or moral, but to -compel such defendant to furnish- money “for the support, maintenance and education of such child,” if he be proven to- be the father of same. Section 811, Code of Civ. Proc.

[3] In f -ing the place for trial, it makes no difference where the cause of a-cti-on arose, where the child was born, or where the mother or child may be domiciled at time action is brought. State v. Patterson, 18 S. D. 251, 100 N. W. 162; State v. Etter, 24 S D. 636, 124 N. W. 957, 140 Am. St. Rep. 801. Except when statutes forbid, the mother may make settlement with the putative father. The rules of evidence are those of a civil crve. It is I rue that the method of procedure partakes, especially in connection with the inception of the action, very much of the nature of proceedings in a criminal action. This is not because the action is in any sense criminal in its nature, but rather because, from the very necessity of the situation, it is necessary to secure the person of -the defendant and -compel the giving of security, in order to insure the value of any judgment that may eventually be found against the defendant. The proceedings under our statute are outside of the original arrest, no- more criminal in their nature than are those under our statute providing for arrest and bail in a civil action.

In the case of In re Walker, 61 Neb. 803, 86 N. W. 510, under a statute very similar to our own, the court held, in accordance with a long line of decisions, that the action was civil in character; and the court quoted the following from the case of Stokes v. Sanborn, 45 N. H. 276: “Indeed, it is .quite obvious that the object of the law is to redress a civil injury, by compelling the putative father to aid the mother in the support of the child, and to- indemnify -the to-wn chargeable with its support against the expenses which may be incurred thereby, giving to the court the power to require of the father or the mother, or both, security against this liability. * * * Some of the forms of this proceeding, it is true, are borrowed from the criminal law; but -these are simply with the view of giving a more summary and stringent character to the process by which the respondent is brought into -court and held to answer the charge, leaving it in most other respects to stand upo-n 'the footing of ordinary civil causes. It is therefore held in- Marston v. Jenness, 11 N. H. 156, and Little v. Dickinson, 29 N. H. 56, that the respondent is not arrainged, but appears -and pleads by attorney. Under a similar law in Massachusetts, this is held to be a civil proceeding. Wilbur v. Crane, 13 .Pick. 284; Williams v. Campbell, 3 Metc. 209. So in Mariner v. Dyer, 2 Greenl. [Me.] 165; Hinman v. Taylor, 2 Conn. 357; Robie v. McNiece, 7 Vt. 419; Gray v. Fulsome, 7 Vt. 452; Smith v. Lint, 37 Me. 546. * * * The service in these cases is by arrest of the body, and security taken for the appearance of the respondent at -the -proper court, by bond, and, although the form of the proceeding is more summary, yet in substance it is like the cases of arrest and bail in ordinary civil process; and, upon a careful consideration of the question, we are of the opinion that a trial and judgment may be had without the personal attendance of the respondent, or that judgment may be rendered on default.”

In some of the earlier decisions of this court, it was held that the action was quasi criminal in its nature; but, in State v. Patterson, supra, which also involved the question of the bar of the ■statute of limitations, this court held the action to be civil in character; and that it was not barred until the expiration of six years from time cause of action arose.’ Appellant insists that what was said in that case upon each of these points was mere dictum and unnecessary to the determination of the real question then before the court, and, furthermore, calls attention to the fact that section 86, supra, as it now reads, was not then in force. We are content to sustain the views of this court as expressed in that case; the same being sustained by the great weight of authority. 5 Cyc. 644; notes to State v. Adington, 11 Ann. Cas. 316. It follows that section 86 of the Code of Criminal Procedure has no application.

The judgment of the trial court is affirmed.