State ex rel. Hawk v. Harris

Complaint in Bastardy: evidence admissible under: New trial. Where a complaint in bastardy, alleging that plaintiff is pregnant with a child, which will be a bastard if born alive, is filed under Code, section 5629, authorizing such suit before the birth of the child, and the evidence shows that the child was born alive after the complaint was filed, but no amendment is made, it is not error to refuse defendant’s motion for a new trial, and in arrest of judgment for the failure to allege the birth o; the child, since evidence of its birth was admissible under the original complaint.

Appeal from, Gass District Court. — Hoar. W. E. Green, Judge. Plaintiee filed in the district court of Aubudon county ■a complaint, on relation of Eliza Hawk, a resident of said •county, alleging that she was an unmarried woman, 20 years •of age, resident of Exira township, Audubon county, and that she was then pregnant with a child, which, if born alive, would be illegitimate, and that the defendant Erank L. Harris is the father thereof. It was alleged that the defendant had absconded from his home in Cass county; that he was the owner of property subject to attachment in said county, ■and was a minor of the age of 19 or' 20 years. The •complainant prayed judgment against the defendant for the ■support and maintenance of the .child and for costs, and for the issuance .of an attachment against the property to the sheriff of Cass county, and that a guardian ad litem be appointed for the defendant, to make defense. An attachment was ordered and levied upon certain real estate in Cass county The defendant answered, denying every allegation contained in the complaint, and by agreement of parties, entered of record, the place of trial was changed to the Cass district court. On suggestion of the minority of the defendant, John Hudspeth was appointed guardian ad litem, and answered, adopting the answer of the defendant. The jury returned a verdict of guilty as charged, and judgment was rendered thereon in favor of the relator “for the support of her bastard child begotten by the defendant,” in the sum of $600. It was adjudged that the attachment be dissolved, the property released, and that execution should not issue on the judgment, “for the reason that defendant is a minor, but this judgment shall be enforced through the probate court.” The plaintiff appeals from so much of the judgment as discharges and releases the attached property and denies the right to an execution, and requires the plaintiff to obtain satisfaction of the„ judgment through the probate court. The defendant also appeals, assigning as error that the court erred in overruling his motion for new trial and m arrest of judgment, “upon the ground that the petition herein does not allege the birth of the child in question. Such birth was an ultimate fact to be pleaded and proven, and, not being pleaded, no legal judgment can be entered. Without a plea of such fact, relator was entitled to no relief whatever ”