Erickson v. Estate of Erickson

Ladd, J.

The plaintiff was born April 15,1896. His mother was unmarried, and at the time resided in Allamakee County, near the home of Martin Erickson. For a considerable time, and until shortly before plaintiff’s birth, she was housekeeper for Martin Erickson. Some time in December, 1895, she caused a bastardy complaint to be filed, alleging that she was pregnant with a child of which Martin Erickson was the father. The cause was assigned for trial at the September, 1896, term of the district court, but was disposed of by stipulation and judgment thereon, after a plea of not guilty had been interposed. The plaintiff rests his claim to heirship, aside from the proof of paternity, upon evidence bringing him within the conditions of Section 3385 of the Code:

“They [illegitimates] shall inherit from the father when the paternity is proven during his life, or they have been recognized by him as his children; but such recognition must have been general and notorious, or else in writing. Under such circumstances, if the recognition has been mutual, the father may inherit from his illegitimate children.”

1. Bastards: gen' eral and notorious recogni I. It appears that Helen Johnson was employed in the home of the decedent in the summer of 1895, during which time she became pregnant with plaintiff, and she testified that he was begotten by decedent. This was not disputed, and the rumors current did not extend beyond this fact. Olson testified to having* accompanied his wife and Helen Johnson to see decedent in the fall of that year, and that, upon being charged with paternity of her unborn child, he neither admitted nor denied, but remained silent; that he acted in like manner on another occasion; and that, when a letter was brought to decedent from parties in Minnesota, accusing him of such parentage, his only response was, ‘ ‘ That is a hell of a note.” This witness lived about a half mile from decedent for 23 or 24 years, and had not heard decedent speak of the child. Ola Rema had been subpmnaed at the trial, aiid testified that he asked decedent what he wanted, and was answered, and related that “he wanted to see if he couldn’t prove that she wasn’t just in her right mind, feeble-minded like; ’ ’ and that decedent, being told that the witness “thought that would go against him considerable, if he went to prove that, ’ ’ and that “it was going to go against him,” answered, after some delay, that ‘ ‘ it might; ’ ’ that decedent, when accused of being the father of the child, didn’t deny it. Helen Johnson corroborated Olson’s testimony as to their interview with decedent, and swore that she had never heard decedent deny paternity of plaintiff, though he had objected to the baptism of the child with his name. He appears also to have interposed a like objection. The clergyman officiating swore that decedent objected on the ground that he was not father of the child, but, though told that his name would not be used, if he filed affidavit denying paternity of the child, compliance was intimated, and no affidavit was filed; and that his name was entered in the church record as the child’s father. Aside from decedent’s denial of paternity in circumstances as recited, the record was without evidence of denial, save as related by Larson, who said that he urged decedent to settle, when informed that ‘ ‘ they wanted $500, ’ ’ and that decedent remarked that “he considered it a large sum of money,” and that “he was not guilty, and did not like to pay it. ’ ’ The witness appears to have urged settlement on the ground that it would be cheaper, and would avoid ridicule and further disgrace.

2. Bastards: written recognition : stipulation for judgment. The mere recital of the record disposes of the contention that there was such recognition by decedent of his paternity as' is contemplated by the statute quoted. See Murphy v. Murphy, 146 Iowa 255; Tout v. Woodin, 157 Iowa 518; Hays v. Claypool, 164 Iowa 297; Watson v. Richardson, 110 Iowa 673; McCorkendale v. McCorkendale, 111 Iowa 314; Brisbin v. Huntington, 128 Iowa 166; McNeill v. McNeill, 166 Iowa 680; Johnson v. Moore, 184 Iowa 648; Duffy v. Duffy, 114 Iowa 581; Trier v. Singmaster, 184 Iowa 307. Nor is there ground for finding that there was recognition in writing. As the ease was about to be called for trial, the following stipulation, signed by Martin Erickson, Helen Johnson, her attorney, and the county attorney, was filed in the office of the clerk:

“Martin Erickson v. State of Iowa: Stipulation.

“It is hereby stipulated that the above-entitled cause is, by and between the parties hereto, and with the assent of Helen Johnson, the prosecuting witness, settled on the following terms: Judgment to be rendered against defendant for $300, payable as follows, to wit: $100 within 30 days from this date; $50 within 4 months from this date; $50 within 10 months from this date; $50 within 16 months from this date; $50 within 22 months from this date, — with interest at the rate of 6 per cent per annum. Judgment to be entered as per this stipulation, and the above amounts to be paid into this court; and that the state or the prosecuting witness make no further claim or take no further proceedings against defendant on account of his alleged paternity of the bastard child of the said Helen Johnson. Dated September 18, 1896.”

On the same day, judgment was entered as follows:

“Noav, on this day, to wit, September 18, 1896, the same being the 5th day of the regular September term, this cause coming on for hearing, E. M. Woodard and M. B. Hendrick appearing for the plaintiff, and Stilwell & Stewart appearing for the defendant. It is hereby ordered and adjudged by the court that judgment be entered as per stipulation. * * *”

The only reference in the stipulation to the paternity of the child is in the part thereof wherein prosecuting witness agrees “to make no further claim or take no further proceedings against defendant on account of his alleged paternity of the bastard child of the said Helen Johnson;” but it is vigorously argued by counsel for appellee that such recognition is implied therefrom, and that, when taken in connection with the further fact that deceased consented to have judgment entered against him, it is sufficient to justify the holding of the court below. The writing alone does not recognize decedent’s paternity, and even if, when construed in connection Avith his implied oral consent to judgment, it amounted to such recognition, this could hardly be said to be recognition in Avriting. At most, it would seem only partly in writing, and this would not meet the requirements of the statute.

3. appeal and anee Kok point”1' raised by court, It does not follow, however, that his paternity of plaintiff was not proven during the lifetime of decedent. This point is not raised on appeal, but is appropriate for our consideration, *n support of the ruling of the trial court. Par^es may llot> by ignoring in their briefs a tenable ground for approving the trial court’s decision, either purposely or through oversight, have the case, if such ground be discovered here, reversed here. Fairness to the trial court exacts this much, to say nothing of the rights of litigants,

4. Bastards: stipulated judgment as proof of paternity. The record discloses that decedent Avas proven, in the bastardy proceedings, the father of plaintiff. Section 5629 et seq. of the Code defines the procedure for adjudicating’ the paternity of an illegitimate child, and the judgment to be entered. Section 5635 of the Code provides that:

“If the accused be found guilty, he shall be charged with the maintenance of the child in such sum or sums, and in such manner, as the court shall direct, and with the costs of the action.”

Under the section following, such sums may, on notice, be increased or diminished, or the judgment vacated. Section 5636 of the Code.

It will be observed that only on finding of guilt is judgment authorized, and then only for the maintenance of the child. Though the public is interested in the action, the right of the mother, if she has attained her majority, with the approval of the county attorney to settle with the accused, is recognized by numerous decisions. Black Hawk County v. Cotter, 32 Iowa 125; State v. Noble, 70 Iowa 174; State v. Meier, 140 Iowa 540; State v. Baker, 89 Iowa 188. All settled in any of these cases was the amount to be paid the mother of the illegitimate, upon the dismissal of the proceedings; and in none was judgment entered: Here, the agreement required judgment to be rendered against defendant for $300, to be satisfied in payments; and, as the statute contemplated judgment only in event of guilt, and for the child’s maintenance, admission of the paternity of the child, in the absence of anything indicating the contrary, is clearly to be implied therefrom. On no other theory would such an entry be likely to- be made. The judgment was on settlement,— but of what? Surely, it was not of his paternity; for that is not alluded to in the stipulation. Of course, it must have been conceded, hypothetically at least, in settling; but, in the absence of anything to indicate that the admission was so intended, or that the judgment was being entered for the support of the child on any other theory than because of his being its father, we think the inference of such parentage is to be drawn. The agreement required judgment to be ‘ ‘ rendered against defendant for $300,” payable in payments. The judgment was to be, and was, entered precisely as though this were done on finding of guilt, and for his own child’s maintenance. The settlement was of the amounts to be paid, and when, and nothing else, save that the judgment should be final. No restriction of the implication of guilt is to be found in the stipulation, nor does any appear in the judgment record; and, as the function of such a judgment is to exact from the defendant the support of his child, there is enough in its entry by consent, in the absence of anything to the contrary, to warrant the implication that the child had been shown or admitted to be his own. In what manner paternity is to be proven is not specified in the statute cited. It is quite enough, if shown by the testimony of prosecutrix or by other proof, as by inference from facts shown, or admissions, or by implication to be drawn from consent to the entry of judgment; and, in any such event, the entry of judgment, in the absence of any restriction, is conclusive evidence that the paternity has in some way been proven. McKellar v. Harkins, 183 Iowa 1030. The evidence of the conversations had at the time does not broaden the stipulation, and in no way limits or qualifies the concession to be implied from the entry of judgment. The record does not suggest controversy or adjustment as to paternity, but of the amount to be paid; and therefore, as to this, there is no basis for the contention that decedent, as to his liability, was merely buying his peace. The court rightly ruled that plaintiff was proven decedent’s heir during his lifetime, and its judgment is — Affirmed.

Weaver, C. J., Evans, Pbeston, and Abthur, JJ., concur.