Huyett v. Slick

Alvey, J.,

delivered the opinion of the Court.

Without .deciding several of the questions discussed in the opinion of the learned judge who determined this case in the Court below, we think the decree appealed from should be affirmed.

The recognizance complained of was entered into by the complainants on the 12th of August, 1872, and it was filed with the clerk of the Circuit Court for the County on the 28th of October, 1872, to be recorded among the proceedings of the Court. Upon application of the mother ah order was issued on the 7th of May, 1873, requiring the putative father of the illegitimate child, and his sureties, to pay to the mother the sum of thirty dollars, for the support of the child for .one year; and, upon their failure to make such payment a scire facias was issued on the recognizance, on the 11th of July, 1873, as directed by the Code, Art. 13, sec. 8. To the scire facias the complainants appeared by attorney, but interposed no defence, and on the 6th of December, 1873, a fiat was entered for the thirty dollars and costs. On this judgment a, fieri facias was Issued on the 18th of May, 1874, and to restrain the execution of which process the present bill was filed on the 4th of June, 1874 ; — nearly two years after the recognizance was taken, and more than a year after proceedings were commenced to enforce it.

It is not alleged or pretended that the complainants, or either of them, remained ignorant of the nature of the recognizance after it was filed for record ; but it is alleged in their bill that they were ignorant of its nature, “until after the same had been returned as aforesaid to the clerk of the said Court, and the same had become a part of the records thereof, and that they then became for the first time aware of the mistake, wrong and fraud upon them.” The recognizance was filed for record, as before stated, on the 28th of October, 1872, and independent of all admission or proof upon the subject, the law would impute knowledge from that time.

Upon the discovery of the father, by the oath of the mother of the child, it was the duty of the justice of the peace to enter judgment against the father, that he give security in the sum of eighty dollars to indemnify the County from all charges that might arise for the maintenance of such child; and if the alleged father felt himself aggrieved by the judgment of the justice, upon making such grievance known to the justice, it became the duty of the latter to require the putative father to enter into recognizance for his appearance at the next Circuit Court for the County, upon which that Court would have been required to take cognizance thereof, and such proceedings would have been thereupon had as in other criminal cases. Code, Art. 13, secs. 2 and 5. This latter proceeding is the mode prescribed by which the judgment of the justice may be reviewed in the Circuit Court, and it is had at the instance and for the benefit of the putative father alone ; and the jurisdiction of the Circuit Court to take cognizance of the case, depends upon the defendant’s compliance with the law in giving the recognizance to appear at the next-Circuit Court. Root vs. The State, 10 G. & J., 374; Cushwa vs. The State, 20 Md., 277. It was his duty, therefore, if he felt aggrieved, and sought to have the judgment reviewed, to have given the proper recognizance; and until such recognizance was given, the judgment of the justice was in no manner stayed, and could be enforced against the defendant for the indemnity to the County. If by mistake the justice took the wrong recognizance, or filled up the blanks with an acknowledgment different from that actually made and intended by the parties, it was the duty of the putative father at once, upon discovering the mistake, to take the proper and necessary proceeding to correct the mistake, and to have the proper recognizance substituted, that the case might be tried without delay. This he failed to do, but allowed more than a year and a half to elapse, after becoming aware of the nature of the recognizance, before taking any steps against it, and then without any proffer to furnish the proper recognizance, whereupon further proceeding could be had. . The present application is in effect, not only to .stay all proceedings on the judgment of the Circuit Court, but to vacate and render nugatory the recognizance upon which that judgment is founded, and thus relieve the party of the proceedings in the Circuit Court, and, possibly, by the occurrence of events, from the judgment of the justice also. To do this would be manifestly unjust both to the County and to the mother of the illegitimate child. If the proper remedy for the alleged mistake be in a Court of equity, (a question we do not decide,) the application should have been made with reasonable diligence, and without any unnecessary delay, in view 'of the nature and circumstances of the case. Such diligence as the nature of the case demanded has not been observed, and the delay has been too great to call into activity the remedial powers of a Court of equity, under the circumstances disclosed.

(Decided 17th November, 1875.)

But, apart from the question of laches, there would seem to be a want of equity in the case. The putative father was himself examined as a witness on his own behalf, and with the fullest opportunity for stating on his oath whether he was really the father of the child or not, he omitted to do so, but stated simply that he had denied the paternity of the child before the justice. The mother proves the paternity of the child, and proves moreover that the father, the complainant, at one time offered to pay the doctor’s bill for attendance during her confinement, and at another time offered to pay $125 by way of compromise, to keep the matter out of Court; and the supposed father admits that he had offered the mother money, to settle the matter, without designating the amount. So, in fact, whatever may have been the mistake of the justice as to the form and nature of the recognizance, no real injustice appears to have been done.

Decree affirmed.