Dineen v. Williams

Morton, C. J.

Proceedings in a bastardy case under our statutes are of a peculiar character. They are commenced like criminal proceedings, by a complaint upon which a warrant issues for the arrest of the defendant. If he, upon a hearing before the proper magistrate, is adjudged to be the father of the child, as alleged in the complaint, he is required to give a bond with sureties to appear at the Superior Court and answer to the complaint, and abide the order of the court thereon. If he fails to give such bond, he is committed. It is the duty of the magistrate to transmit to the Superior Court the bond, if one is taken, and a copy of his record. If the defendant is committed on account of inability to give bond, he may at any time during the proceedings give the bond required, and be discharged from prison. Pub. Sts. c. 85.

Thus far the proceedings are in the nature of proceedings in a criminal case. When the case reaches the Superior Court, it is treated as a civil suit. The proper course is for the complainant to file in that court a supplementary complaint, in order to state the facts and frame an issue with a view to the orderly trial of the matter in controversy. It may often happen that the complainant is not delivered of the child until after the first term of the Superior Court has passed, and therefore that the complaint in that court cannot be filed until a subsequent term. Reed v. Raskins, 116 Mass. 198 .

It is the duty of the complainant to enter the action, by paying the usual entry fee, at the commencement of the first term. But although the action is in general regarded as a civil suit between the complainant and the defendant, yet the public has an interest in it. The parties cannot settle it between themselves. They must procure the consent of the parent or guardian of the woman, or of the overseers of the poor of he,r place of settlement or residence, or of one of the state board of health, lunacy, and charity, or the superintendent of the state almshouse, unless provision is made satisfactory to the court to indemnify the parent, guardian, city, town, or the State, for all charges for the maintenance of the child. Pub. Sts. c. 85, § 17.

In the same line of protecting the public interests, the statute provides, in § 2, that, if the woman entitled to make a complaint refuses to do so, either of the above-named public officers may do *370 so, and, if she has made a complaint and neglects to prosecute it, either of them may prosecute the case to final judgment. If therefore the complainant neglects to enter the ease at the commencement of the first term, this is a neglect to prosecute the same, and either of such officers may subsequently come in and prosecute the case. Wheelwright v. Greer, 10 Allen, 389 .

Again, the statute, in § 12, provides that, where the party accused is committed, and the complaint is not entered at the term of the Superior Court at which he was required to appear, he may apply to the court asking to be discharged, and if, after notice, it appears that there is no ground to hold him to answer further, he shall be discharged.

These provisions show that the statute does not contemplate that the neglect of the complainant to enter her case at the proper time puts an end to the case, or defeats the jurisdiction of the court, or discharges the defendant or his sureties if he has given a bond. So to hold would be inconsistent with the statute, and would defeat its purposes.

There can be no doubt that, if, by reason of accident or mistake, such case is not entered at the beginning of the term, it is competent for the court, during the first term, to allow a post entry to be made, and to proceed with the case. And we can see no good reason for holding that the court has not the power to do this at the next term, if, in its judgment, a proper case is made out. In this case, the facts show that, in presenting her supplementary complaint at the second term, the complainant was guilty of no unreasonable delay. Upon presenting such complaint, it being discovered that she had, by mistake, neglected to enter her action at the first term, we are of opinion that it was within the power of the court to permit her to enter it as of the December term, and thus correct a mistake and prevent the defeat of justice by an accident.

Whether, if the surety on the defendant’s bond could show that he was injured in any way by the mistake of the complainant, it would discharge him, we need not consider. There was no change in his situation caused by the delay; he could at any time have surrendered his principal, and thus have relieved himself from responsibility. Having suffered no injury, we are of opinion that he is not discharged. Judgment affirmed.