State v. Shoemaker , 62 Iowa 343 ( 1883 )

Beck, J.

I. The undisputed testimony as disclosed by the evidence for the state established the following facts:

I. The child was begotten by the defendant, and was born on the 13th day of August, 1882. 2. Prior to its birth, on the 1st day of June, 1882, the mother, the prosecutrix, married another man named Getz. 3. At and before the marriage, Getz was informed by the prosecutrix that she was en-ceinte; her condition was apparent from her appearance. Upon these facts, the district court held that plaintiff could not recover, and directed the jury to return a verdict for defendant.

II. Under chapter 56, Title 25 of the Code, a father may be charged with the maintenance of his illegitimate child. The proceeding thereunder is entitled as an action in the name of tbe state against tbe alleged father, and may be prosecuted upon tbe complaint of tbe mother. It is a civil action of a summary nature, (Holmes v. The State, 2 G. Greene, 501; Black Hawk County v. Cotter, 32 Iowa, 125,) and is intended to secure the maintenance of tbe bastard, to tbe end that in no event shall tbe public become cbargable therewith. Of course, if one stands in tbe relation to tbe child which will cause the law to esteem him liable as its father for its support, being in loco parentis, the proceeding cannot be prosecuted against another who is in fact the natural father. The one whose relations are such that he stands in loco parentis the law esteems the father, and will not, for various reasons, enquire by whom the child was begotten. One who marries a woman known by him to be enceinte is regarded by the law as adopting into his family the child at its birth. He could not expect that the mother upon its birth would discard the child and refuse to give it nurture and maintenance. The law would forbid a thing so unnatural. The child, receiving its support from the mother, must of necessity become one of her family, which is equally the family of the husband. The child, then, is received into the family of the husband, who stands as to it in loco parentis. This being the law, it enters into the marriage contract between the mother and the husband. When this relation is established, the law raises a conclusive presumption that the husband is the. father of his wife’s illegitimate child. We must not be understood to hold that this rule prevails in cases involving questions of heirship and inheritance. In these cases the rights of others besides the husband and bastard arise. In this case, the rights and liabilities of the husband and child are alone involved; they rest upon the relations which impose upon the husband the duty of maintaining the child. Our conclusion is supported by public policy, and considerations which work for the peace and well being of families. A husband who, in the manner we have indicated, has put himself in loco parentis of a bastard child of his wife, ought not to be permitted to disturb the family relation, and bring scandal upon bis wife and her child, by establishing its bastardy, after he has condoned the the wife’s offense by taking her in marriage.

III. The conclusion' we reach in this case is supported by The State v. Romaine, 58 Iowa, 43, and cases therein cited.

IY. Many of the cases cited by defendant’s counsel, (Wright v. Hicks, 15 Ga., 160; Cross v. Cross, 3 Paige Ch., 139; Goodright v. Saul, 4 Tenn., 356; Lomex v. Holmden, 2 Strange, 940; Hall v. Commonwealth, Hardin, (Ky.,) 486; State v. Pettaway, 3 Hawks, 623; Commonwealth v. Wentz, 1 Ashm., 269; The King v. Inhabitants of Kea, East, 132; The King v. Inhabitants of Maidstone, 12 East, 550; Shelly v. -13 Ves., 56; State v. Broadway, 69 N. C., 411; Stegall v. Stegall’s Adm’r, 2 Brock., C. C., 256,) involve questions of heirship or iuheritance, and; in this respect, differ from the case before us. The distinctions between those cases and this, based upon this ground, are obvious. Ve have above pointed them out. Other cases cited by counsel are also distinguished by these facts from this case. It is our conclusion that the judgment of the district court ought to be

Affirmed.