Kirk v. State ex Hart

BY THE COURT.

This case was tried in the Montgomery Common Pleas and was a paternity case in which George Kirk was convicted under the statute and a judgment was rendered against him in the sum of $150 and costs of prosecution including attorney’s fee in favor of complainants attorney for $300.

Error was prosecuted by Kirk and the Court of Appeals held:

1. There was sufficient evidence to sustain the conviction as to the paternity of the child, and the verdict was not contrary to the manifest weight of the evidence.

2. The allowance of an attorney’s fee in favor of the complainant’s attorney was error for there is nothing in the statute expressly authorizing an allowance for an attorneys fee.

3. The statute provides for a judgment against the defendant for costs of the prosecution; but this of itself does not include the right to tax an attorney fee.

4. The rule in this state is that an attorney fee should not be taxed as part of the cost unless expressly authorized by statute; and the judgment so far as it relates to the attorney fee will be vacated; but affirmed in all other respects.

Judgment as modified, affirmed.