Austin v. Pickett , 9 Ala. 102 ( 1846 )

GOLDTHWAITE, J.

1. In Trawick v. Davis, we held that proceedings of this nature ought not to be scanned with great strictness, and though in this case they are somewhat informal, yet we think there is no sufficient error to reverse the judgment. If the concession is made that, under the statute, the complaint can only be made by a single woman, it sufficiently appears that the relator here was such at the time of its exhibition.' ' '

2. There is only one aspect in which the marriage of the relator could be material, as we are clear that the proceedings ought to go on against the defendant, notwithstanding said marriage ; and that is with respect to the costs of the suit, when the imputed father is discharged by the judgment of the Court. We cannot here arrive at the conclusion that the-relator was a married woman when the trial took place, and consequently the defendant can have no advantage of the supposed marriage, even if one existed in point of fact. As the fact of marriage does not appear, it is unnecessary to determine in what manner advantage should be taken of such a matter, or whether it would in any way affect the prosecution.

3. The third section of the title bastardy, [Clay’s Digest, 134,] directs that the Court shall cause an issue to be made up “ whether the reputed father is the real father of the child or not.” The issue tendered by the Court directed-the jury to inquire whether the. defendant,- the reputed father of a certain child, a daughter of Mary Ann Dixon, late' Mary Ann Brooks, is the real father of said child or not. If the proceeding had been in the absence of the defendant, it might be that the response of the jury would not determine the fact that the defendant was the real father of the bastard child, as alleged in the information ; but the proper mode of objecting to the uncertainty of the issue tendered, would have been to have excepted to it, as it .was the act of the Court and not the pleading of the relator. When, however, he pleaded to the charge, the proper issue was made up and submitted to the jury, as by his plea he asserted he was not guilty of being the father of the bastard child in this cause named. The verdict is directly responsive to this issue, as it finds that the defendant is the real father of said child. It would be entirely too forced a construction of this verdict to infer from it that the trial was had with regard to a child other , or different from that alleged in the complaint.

4. - The judgment seems-to be in strict conformity -w-ith-the statute, for that directs “ if the -issue be found against the defendant, then he shall be condemned by the judgment of the Court, to pay, not exceeding fifty dollars, yearly, for ten years, towards the maintainance and education of said child ; and the said imputed fathar shall give bond and security for the due and faithful payment of said sum of money, which shall be made payable to the said court, and laid out and appropriated under its special order and direction, from time to time made, so that the same be not paid to the mother of the child. The bond, when executed, is declared to have the effect of a judgment, upon which executions may issue, as often as money thereon shall become due and payable.” Ffom this recital of the act, it will be seen that the judgment is properly one of condemnation merely, for the particular sum ascertained, at the discretion of the Court. No day is necessary to be fixed on within each year for its payment, as that is left to the subsequent special order and direction of the Court, from time to time to be made. The objection that the judgment is not merely one of condemnation for the money only, but is also that the defendant shall give the bond required by the statute, is of no weight, as it merely directs what was the legal consequence of the verdict.

The result of this examination of the matters assigned as error, is, that there is nothing which will authorize us to reverse the judgment.

Judgment affirmed.

fij5’Decided at June term, 1845, and omitted by mistake;