State ex rel. Hawk v. Harris

Given, J.

I By stipulation this case is submitted on' the plaintiff’s appeal on the arguments in the case of Hawk v. Harris, 112 Iowa, 543 ante. What we have said in that case-fully disposes of the questions presented in this on plaintiff’s, appeal, and it follows therefrom that in so far as the judgment in this case dissolves the Attachment, releases the attached property, denies execution, and orders that the judgment shall be enforced through the probate court, it is, reversed.

II. The only question presented on defendant’s appeal is whether the court erred in overruling his motion for new trial and in arrest of judgment “upon the ground that the relator’s petition fails to allege the birth of the child in. question.” The complaint was made September 19, 1898,, and alleged that the relator “is now pregnant with child, which, if born alive, will be illegitimate.” The trial was-had January 20, 1899, and the complainant testified, without objection, that the child was born November 24, 1898,. and was still living. The object of this proceeding is to secure the maintenance of the child. State v. Shoemaker, 62 Iowa, 343. If the child was not born alive, this action would abate. State v. Beatty, 61 Iowa, 307 The complaint alleges all that could have been truthfully alleged at the tune it was made, namely, the pregnancy of the complainant. If the child had not been born alive, this proceeding would have abated. To establish liability, it was necessary that the state-should show m support of the complaint that the child was. born alive; and this we think it could do, under the allegations of the complaint, without amendment. Code, section. 5629, provides specifically for just such a complaint as this, and no provision is made for amending it by alleging the subsequent birth of the child. We think there was no error-in the respect complained of. The judgment of the district court is reversed on plaintiff’s appeal, and aeeirmed on defendant’s appeal.