State, Ex Rel. McCloskey v. McCloskey , 34 Ohio App. 30 ( 1929 )

The original action was brought in the court of common pleas to recover upon a bond given for the support of minor children, pursuant to the provisions of Section 13010, General Code, after a plea of guilty to an indictment charging the defendant, Richard Raymond McCloskey, with nonsupport of minor children under sixteen years of age, in violation of Section 13008, General Code. The amended petition alleges in substance the execution of the bond and sets out a copy. This bond runs to the state of Ohio, and contains the following conditions:

"If the said Richard Raymond McCloskey from and after the date of the execution hereof and the approval of the same, as provided by law, and until his said children, Richard George McCloskey and Merceda Margaret McCloskey respectively arrive at the age of 16 years, will furnish said children with the necessary and proper home, care, food and clothing or in lieu thereof will pay promptly each week for such purpose to the Clerk of said courts the sum of Six Dollars ($6.00) and abide the judgment of said Court, then this bond shall be void; otherwise it shall be and remain in full force and effect in law."

The bond shows upon its face that it was approved by the trial judge.

The amended petition then alleges there was a breach of the bond through failure of the defendant, McCloskey, to furnish care and support for the children, and to make the payments as ordered, and that Mary McCloskey, as a result, has been compelled to expend moneys in caring for and maintaining them during the period covered by the bond. It further appears from the amended petition that sentence was suspended after the bond was given and approved.

The defendants filed a motion to strike the amended petition from the files and to dismiss the action, upon the ground that such amended petition is an unauthorized pleading, filed by Mary McCloskey individually, through her attorneys, and not by the state of Ohio through the prosecuting attorney of this county, as required by law. The trial judge sustained this motion, and entered judgment dismissing the petition at the costs of plaintiff. The action of the trial court is assigned as error in this proceeding.

Section 13010, General Code, provides as follows:

"If a person, after conviction under either of the next two preceding sections and before sentence thereunder, appears before the court in which such conviction took place and enters into bond to the state of Ohio in a sum fixed by the court at not less than five hundred dollars nor more than one thousand dollars, with sureties approved by such court, conditioned that such person will furnish such child or woman with necessary and proper home, care, food and clothing, or will pay promptly each week for such purpose to a trustee named by such court, a sum to be fixed by it, sentence may be suspended."

An action on a bond, executed under the provisions of this section, might properly have been brought by Mary McCloskey in her own name, under the provisions of Section 11242, General Code. Maryland Casualty Co. v. McDiarmid, 116 Ohio St. 576, 583,157 N.E. 321.

She saw fit, however, to bring the action in the name of the state of Ohio, on her relation.

Section 11244, General Code, provides as follows:

"An executor, administrator, or guardian, a trustee of anexpress trust, a person with whom, or in whose name, a contractis made for the benefit of another, or a person expressly authorized by statute, may bring an action without joining withhim the person for whose benefit it is prosecuted."

The state of Ohio has no interest in the amount that may be recovered in an action on a bond of the character of that involved in the action below. The intent of Section 13010 is plain. By its terms sentence is suspended after the bond is given, and the convicted person is given an opportunity to earn the money and to support his children in accordance with the order of the court, and security for his doing so is furnished through the bond. Money which is recovered through an action brought in court for breach of the bond goes to the person who has furnished such support.

As the contract evidenced by the bond is made in the name of the state for the benefit of a person who may furnish the support, an action for breach of the bond may be brought either in the name of the person who is entitled to the benefit of the security given or in the name of the state of Ohio, for the use and benefit of such person.

In the case of Sherwood v. State, ex rel. Sherwood, 22 Ohio App. 507, 153 N.E. 287, the original action was brought upon a bond given for the care and support of a minor child under the provisions of Section 11979-1, General Code. The trial court rendered a judgment in favor of the plaintiff for the use of Jocelyn E. Sherwood for the sum of $1,500. The reviewing court held that the action was properly begun in the name of the state, on relation of Sherwood, under the provisions of Section 11244, General Code, and the judgment was affirmed.

In the case of Dimmitt v. State, ex rel. Milburn, 112 Ohio St. 691, 148 N.E. 90, after conviction in a bastardy case, a supersedeas bond was given to stay judgment pending prosecution of error in the Court of Appeals. After affirmance of the judgment of conviction, an action was brought on the supersedeas bond by the State of Ohio ex rel. Helen Milburn, and Helen Milburn, against Calvin Dimmitt and the sureties on the bond. Upon trial by the judge, a jury being waived, judgment was rendered against the plaintiff. Error was prosecuted to the Court of Appeals. The judgment of the trial court was reversed, and the reviewing court rendered the judgment which should have been rendered in the court below, namely, a judgment against the defendants. The Supreme Court affirmed the judgment of the Court of Appeals. An examination of the printed record filed in the Supreme Court shows that no question was made as to the joinder of the plaintiffs. The reported case, however, is not as helpful in the instant case as would at first appear from an examination of the opinion.

We have examined the many decisions cited, and, in addition, have made an original investigation. It would seem that the conclusion reached is the only logical one.

The trial court erred in sustaining the motion, and the judgment is reversed, and cause remanded with directions to overrule the motion and for further proceedings according to law. As the cause is remanded for the purposes above indicated, we call attention to the fact that the amended petition would be in better shape if it alleged and set forth specifically the amount expended by the relator named therein for the care and support of the minor children.

Judgment reversed and cause remanded.

LLOYD and RICHARDS, JJ., concur.