Opinion
Len E. Bunger, Jr., Austin V. Clifford, Bloomington, for appellant.
Willis Hickam, Hickams&sHickam, Spencer, for appellee.
ON PETITION FOR REHEARING
HUNTER, Chief Justice.
Appellant raises two primary questions in her petition for rehearing concerning our decision in this case (see Burnett v. Camden (1969), Ind., 254 N.E.2d 199) which we feel compelled to disposed of by way of written opinion.
Appellant first alleges that this court erred in its holding that the dismissal of the 1919 filiation proceeding before trial in the circuit court left the situation just as though the suit had never been filed. A distinction is drawn by appellant's argument between an ordinary suit in tort or contract and a statutory proceeding which, by the terms of the statute, gives a lasting effect to a dismissal. The statute referred to by appellant follows:
'Dismissal of suit.--The prosecuting witness, if an adult, may, at any time before final judgment, dismiss such suit, if she will first enter of record an admission that provision for the maintenance of the child has been made to her satisfaction, and if such witness be a minor, she may dismiss such suit, if it be first shown to the satisfaction of the court, in which the same is pending, that suitable provision has been made and properly secured for the maintenance of the child, and a finding of the court to that effect entered of record; And such entry, in either case, shall be a bar to all other prosecutions for the same cause and purpose.' 1875 (Spec.Sess.) ch. 4, § 1.
It is evident from a reading of the statute that it does not purport to govern the legal efficacy of a dismissal as appellant seems to contend. The statute does to some extent govern the rights of the parties pursuant thereto by stipulating that a dismissal will operate to bar a future suit provided there is an admission that provision for the maintenance of the child has been made. No further mention is made, however, in regard to the effect of a dismissal and we therefore hold that the general rules relating to dismissals as set out in our original opinion were properly applied. This being so, the dismissal operated to nullify all prior proceedings insofar as an adjudication on paternity is involved.
Notwithstanding this fact, appellant cites no authority for the proposition that an adjudication of paternity in the justice court in a bastardy proceeding under the then current Bastardy Act would be sufficient to 'establish by law' the paternity of appellant as required by the inheritance statute (Ind.Ann.Stat. § 6--207 (1953 Repl.)). As we noted in our original opinion, the inheritance statute specifies the quantum of proof necessary, to-wit: the evidence of the mother and/or other corroborative evidence or circumstances. We note that the only evidence required under the Bastardy Act is that of the mother. 2 R.S.1852, ch. 3, § 7. Included in the record of the instant case is a copy of the proceedings had in the justice of the peace court. The only evidence there taken was that of the mother and it appears from the record that such evidence was the sole basis for the justice's determination as to paternity. Obviously this would be insufficient under the standard of proof laid down in the inheritance statute. Secondly, it would appear that the justice's determination was never intended to be conclusive as to a finding of paternity. The Bastardy Act expressly provided that upon a finding of paternity by the justice court, the justice was to transmit the papers and a transcript of such judgment to the clerk of the circuit court to be filed and docketed for trial. Were the adjudication of the justice intended to be a binding determination on the question of paternity, there would be little need for a trial in the circuit court. It is our conclusion therefore that the justice's decision would not be a competent adjudication irrespective of the proceedings that followed.
The second point raised by appellant's petition for rehearing is that this court erred in holding that Ind.Ann.Stat. § 6--207 (1953 Repl.) does not violate appellant's constitutional right to equal protection of the laws. Appellant here reiterates her argument that the inheritance statute arbitrarily disinherits illegitimate children by requiring proof of heirship. The implication appears to be that such a requirement evidences an 'irrational prejudice' against innocent children for the wrongdoing of their parents. As this court attempted to make manifestly clear in the majority opinion however, the distinction drawn between legitimate and illegitimate children for purposes of inheritance under the interstate succession laws is to prevent the successful maintenance of fraudulent claims. Illegitimate children are not denied those rights accorded the legitimate; rather the right is reasonably conditioned on a substantiation of the claim of paternity.
Appellant here argues that the danger of fraudulent claims abounds in all types of litigation and is not reason enough to impose the additional requirement of proof of paternity on the illegitimate. However in a situation such as that before us the one, if not the only, person who could effectively rebut a claim of paternity is deceased. Appellant's rights as an illegitimate child are not the only matters of concern for this court. Thus to require certain acts to have been performed or compliance with a certain standard of proof in establishing paternity is entirely reasonable. The statutory prerequisites to inheritance by intestate succession is a proper and constitutional effectuation of a legitimate state objective.
For the foregoing reasons, appellant's petition for rehearing is denied.
Petition denied.
ARTERBURN and GIVAN, JJ., concur.
DeBRULER and JACKSON, JJ., concur in result.