Seale v. McClanahan , 21 Ala. 345 ( 1852 )

CHILTON, J.

— In this case, tbe only point of difficulty arises upon tbe construction of tbe second section of tbe bastardy act, found in Clay’s Digest 134, wbicb requires tbe justice of tbe peace, before whom complaint may be made that any one is the father of a bastard child by a single woman, on sufficient cause appearing, “tobind such person, so accused, in bond, with good and sufficient security, to be and appear before tbe next County Court to be holden for said county, and in the mean time to be of good behavior.” Tbe third section declares, that the County Court aforesaid, at its next term, shall have full and complete cognizance and jurisdiction of said charge of bastardy. By tbe act approved 13th February, 1850, Pamphlet Acts, p. 37, it was provided, that proceedings in cases of bastardy, which are required to be returned to the County Court, shall, after tbe time named in tbe first section of this act, (viz: tbe first Monday in May, 1850,) be returned to tbe Court of Probate, in which tbe like proceedings shall be had as are required by the existing laws of the County Court; and tbe said Courts of Probate shall have and exercise full jurisdiction of, and perform all the duties in cases of bastardy now exercised and performed by the County Courts.

By the thirteenth section of tbe act establishing Courts of Probate, passed at the same session, (Acts of 1850, p. 27,) it was enacted, “.that said judges of probate shall each bold, at the court house of their respective counties, a regular term of his court, to commence on tbe second Monday in each month, and may have special or adjourned terms, when- required for any special business, at any time.”

Under these statutes, we think it clear, that the bond taken before the justice of the peace in this case, and which the act of 1811 required should provide for the appearance of the putative father at “the then next term of the County Court,” should have been made returnable to the term of the Probate Court next after it was executed, which must have intervened before the court in July. Had the bond been thus returned and conditioned, the next court, whether in May or June, as the case might be, would, in the language of the act, have had “full and complete cognizance and jurisdiction of the charge.”

We do not think that in such case any further notice to the party would have been required. Had he bound himself to appear at a court to which he might lawfully have been required to appear, his non-attendance would have furnished no reason for suspending, much less thwarting the action of the court.

But a limited jurisdiction is conferred upon the Probate Court in this matter, to be exercised in a special manner. This jurisdiction attaches when a party is bound to appear before it, upon a charge of being the father of a bastard child, at its session next after the bond is taken, and no statute confers on it power to take cognizance, and proceed ex parte with a cause brought before it in a different manner. If the justice could skip over two courts, why may he not two years? Where will be the point beyond which he may not require the party to appear ? The rule and the only guide is furnished by the statute. If the bond does not conform to that, it is void, and the proceedings dependent upon it are coram nonjudice.

As respects the form of the judgment, it has been several times decided by this court, that it is sufficient, since the statute points out with unerring certainty who is the plaintiff. Trawick v. Davis, 4 Ala. 328; Austin v. Pickett, 9 ib. 102; Yarborough v. Judge of Shelby county, 15 ib. 556.

The other questions raised will hardly come up in the further prosecution of this party.

The judgment must be reversed, and the proceedings vacated. The cause will not be remanded, since it was never properly in the court below. The subsequent steps -which would be required, would amount to the institution of new proceedings.