State v. Vick

218 N.W. 214, 56 N.D. 561, 1928 N.D. LEXIS 173

• Court: North Dakota Supreme Court
• Decided: February 24, 1928
• Status: Published

Opinion

Birdzell, J.

This record presents the single question as to whether or not it is necessary in actions under the Uniform Illegitimacy Act (§§ 10,500al to 10,500a37, inclusive, of the 1925 Supplement to the Compiled Laws of 1913) to serve notice of trial in order to place a case upon the calendar of the district court and bring the same to trial, where, after preliminary hearing before a justice of the peace, a defendant has been bound over and has given security for his appearance. The old illegitimacy act, which is superseded by the act above cited, expressly provided (Comp. Laws 1913, § 10,489) that the trial of such proceeding's should be governed by the law regulating civil actions; that the clerk should place the proceedings upon the calendar for trial at the first term" of the district court after the papers were received by him, and that no notice of trial and note of issue need be served or filed. There is no similar provision in the new uniform act, but there is a provision to the effect that if the child is not born at the time set for trial the case shall, unless the defendant consents to trial, be continued until the child is born and that the defendant shall remain bound or held until trial (§ 10,500al4) ; and a further provision that the trial shall be by jury, if either party demands a jury, otherwise by the court, and that it “shall be conducted as in other civil cases” (§ 10,500al5); and that, if the defendant fails to appear, the security shall be forfeited and applied on account of the payment of the judgment, but that the trial shall proceed as if he were present (§ 10,500al6). The bond or recognizance obligates the defendant “to appear at the next term of the district court to be held in the county” (§ 10,500al3). We are of the opinion that the clear import of the provisions referred to is that when a defendant, upon examination, has been bound to the district court to answer to the charge in the complaint the matter is automatically on the calendar at the next term at which it could be tried without the service of a iiotice of trial. We think this meaning clearly appears from the provisions of the act referred to and that any contrary implication arising from the failure to re-enact the express provision to the same effect, which was contained in § 10,489 of the Compiled Laws of 1913, is entirely -overcome. Of course, this would not necessarily apply to a proceeding instituted in the first instance, with the consent of the complainant, by a summons instead of a warrant (§8 10,500all). Nothing herein said is to be considered as a qualification of any holding in State v. McKay, 54 N. D. 801, 211 N. W. 435, or State v. Sukut, 55 N. D. 417, 213 N. W. 961, wherein emphasis was laid upon the fact that proceedings under the Uniform Illegitimacy Act were civil proceedings and that the rules governing trials of civil actions are applicable. The act itself expressly so provides. Note of issue and notice of trial are steps taken before the trial for the definite object of placing a cause upon the calendar; and where proceedings are authorized under which a defendant is at once put on the defensive as against a definite charge and is compelled to answer that charge at a time set, as where he has been bound over to the district court on a complaint in bastardy proceedings and has given bond for his appearance, every purpose of the notice of trial has been served. The case stands for trial by virtue of the proceedings already had.

The judgment is affirmed.

Nuessle, Ch. J., and Christianson, Burke, and Burr, JJ., concur.