Stone v. State ex rel. Milhorn

33 Ind. 538

• Court: Indiana Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Pettit, C. J.

This was a prosecution for bastardy. The proceedings before the justice are not in the record — no ’ complaint sworn to, as required by the statute, waiTant, recognizance, or transcript; There is therefore no foundation on which this suit can stand.

R. L. Coffey, W. R. Harrison and W. S. Shirley, for appellant. J. S. Hester, for appellee.

A motion was made to dismiss it before the answer was put in, which was overruled, but which ought to have been sustained. After an answer of general denial was put in by attorney, in the common pleas court, a recognizance was given, and by agreement of the parties the case was specially s.ot for a certain day of the term. On that day, the defendant did not appear in person, and, over the objection of his attorney of record, he was defaulted, and a forfeiture was entered; and, over a like objection of the attorney, the case was tried by the court without a jury; and the court would not allow the attorney to appear in the case, or ask a single question by way of cross-examination, because the defendant wás not present, but did allow him to object and except, and did sign bills of exception showing these facts. This is declared by statute and repeated rulings of this court to be a civil suit, and that the trial shall be governed and conducted in the proceedings in all respects as a civil suit or action. In such a suit, though not present in person, the defendant may appear by an attorney, have a jury trial, cross-examine witnesses, and introduce others for the defense. These rulings of the court were erroneous, and for them the cause must be reversed.

Judgment reversed, at the costs of the appellee. Cause remanded for further proceedings, &e.