Wilson v. Wilson

31 Ky. 98, 1 Dana 98, 1833 Ky. LEXIS 25

• Court: Court of Appeals of Kentucky
• Decided: April 15, 1833
• Status: Published

Opinion

Chief Justice Robertson

delivered the Opinion of the Court.

Having been charged with being the father of a bastard child, of whom Sarah Wilson had been delivered, Jacob Wilson entered into a recognisance, with .John Wilson his surety, for his appearance in the county court.

On the day fixed for his appearance, the principal, and his surety also, were called, and failing to appear, the county court entered a judgment against them both jointly, in favor of Sarah Wilson, and vñthout trial or proof, for one hundred and seventy five dollar's, for the maintenance of the child, payable in seven consecutive, annual instalments, and ordered that executions should issue for enforcing the payment of each instalment as it should become due.

That judgment is now called in question ; and must be reversed, for error from the beginning to the end of the action of the county court.

The court had no power to render a judgment, even against the putative father, without a trial and proof. Ñor had it any right to order execution, on even an authorized judgment for maintenance : its utmost power extended no further than to exact a bond with security.

But still more palpable and anomalous is the error in the judgment against the surety in the recognisance. By agreeing to be responsible for the appearance of his principal he incurred no liability for the maintenance of the child. For a forfeiture of his recognisance he was only liable to be proceeded against for the penalty. We need not notice other errors.

Wherefore, the judgment of the county court is reversed.