State v. Stark

Ladd, J.

1. bastardy: presence of child in court The bahy was born November 21, 1907. Was defendant its father? Prosecutrix so testified,, but the defendant denied. The trial occurred in October, 1909, so' the child was nearly two years old when held ‘ on its mother’s lap while testifying, , , . " . though she stood, m order to keep it quiet, during the cross-examination. No objection to its presence was made, but the court cautioned the jury in the instructions against considering or discussing any' supposed or fancied resemblance or nonresemblance with defendant. It was not tendered in evidence as in State v. Harvey, 112 Iowa, 416 , nor exhibited to the jury in argument as in State v. Meier, 140 Iowa, 540 , and State v. Hunt. But the child was present in court and with its mother, and, as said in State v. Clemons, 78 Iowa, 124 : “We know of no rule which would require the separation of mother and child while she testified or was present at the trial.” Nor was the Supreme Court of Nebraska in Hutchinson v. State, 19 Neb. 262 ( 27 N. W. 113 ), able to discover any such rule. Had timely objection been interposed, then it must have been overruled.

2. Same: verme. II. The defendant objected to the jurisdiction of the court, on the ground that prosecutrix was not a resident of Benton County when the child was born. The evidence conclusively showed otherwise. She had worked for some time in Linn County, but was little more than sixteen years of age and had not been emancipated. Nor was there anything to indicate that *751 she had taken np her residence elsewhere than with her parents, who had continually resided in Benton County for many years. She returned there when enceinte, but was delivered of the child at Iowa City in Johnson County. Absence for that purpose was temporary and did not affect the venue as properly laid in Benton County. Davis v. Carpenter, 172 Mass. 167 ( 51 N. E. 530 ); Hodge v. Sawyer, 85 Me. 285 ( 27 Atl. 153 ).

3. Judgments: infants: appointment of guardian. III. The defendant testified that he was twenty years ■ old in June previous to the trial. This was the only reference to his age, save in the motion for new trial, because of no guardian ad litem having been appointed. This testimony was uncontroverted, and before proceeding farther a guardian ad. litem should have been appointed to defend. Section 3482 of the Code provides that “the defense of a minor must bo by his regular guardian, or by one appointed to defend for him, where no regular guardian appears or where the court directs a defense by one appointed for that purpose. No judgment can be rendered against a minor, until after a defense by a guardian.” That the entry of judgment without defense by a guardian was reversible error appears from Wise v. Schloesser, 111 Iowa, 16 , and cases therein cited. But it is said the error was obviated by the circumstance that defendant’s father was present in court and testified in his behalf. He may have been the natural guardian o|, the person of his son, but not of his property. Section 3192, Code. “If a minor owns property, a guardian must be appointed to manage the same.” Section 3194, Code. As parent, he might not control his son’s property interests. Miles v. Kaigler, 10 Yerg. (Tenn.) 10 ( 30 Am. Dec. 426 ); French v. Hoyt, 6 N. H. 370 ( 25 Am. Dec. 466 ); Miles v. Boyden, 3 Pick. (Mass.) 213; Kline v. Bebee, 6 Conn. 500 .

Moreover, the statute is explicit in exacting a defense by guardian, regular or ad litem, and in prohibiting judg *752 ment unless so made. In this respect, the case is to be distinguished from Wrisley v. Kenyon, 28 Vt. 5 , which does not purport to construe a statute and in which the infant was jointly sued with the father, and the court held that as the father had notice and defended for both, this was sufficient, relying on Priest v. Hamilton, 2 Tyler (Vt.) 50, in which no opinion was filed, and 1 American Leading Cases, 265 , which lends no support to the decision. This was followed by Fuller v. Smith, 49 Vt. 253 , where stress seems to have been laid on the thought that the parent was legally competent to defend. These decisions do not appear to have been followed elsewhere, but in Johnson v. Waterhouse, 152 Mass. 585 ( 26 N. E. 234 , 11 L. R. A. 440, 23 Am. St. Rep. 858 ), they are shown to be contrary to the current of authority and opposed to sound legal principles. See, also, Letcher v. Letcher, 2 A. K. Marsh. (Ky.) 158; Swain v. Fidelity Ins. Co., 54 Pa. 455 . The language of the statute precludes a construction that defense by a natural guardian is compliance therewith.

A new trial should have been granted. — Reversed.