Opinion
No. 28,488.
Filed May 4, 1949.
1. BASTARDS — Judgment — Collateral Attack on Appeal from Contempt Citation — Sufficiency of Petition — Judgment Cannot Be Collaterally Attacked. — A collateral attack upon a judgment finding defendant to be the father of plaintiff's illegitimate child cannot be made on appeal from an order finding defendant in contempt of court for default in support payments on the ground that plaintiff's petition, upon which judgment was rendered, was insufficient. p. 268.
2. BASTARDS — Proceedings — Appeal — Sufficiency of Petition — Not Tested by Demurrer — No Question Can Be Raised upon Appeal. — Where no demurrer was filed to petition to establish defendant as father of plaintiff's illegitimate child and for support of such child, no question can be raised as to the sufficiency of such petition on a direct appeal from the judgment granting plaintiff relief as prayed. Burns' 1946 Replacement, § 2-1011. p. 268.
3. APPEAL — Harmless Error — Pleading — Form or Substance — May Not Be Questioned for First Time on Appeal — Must Be Properly Questioned in Trial Court. — Questions as to the form or substance of a pleading may not be raised, under the statute, for the first time on appeal, unless properly questioned in the trial court. Burns' 1946 Replacement, § 2-1011. p. 268.
4. BASTARDS — Proceedings — Nature of Grounds and Remedy — Statutory. — An action may be brought under the statutes by petition to establish the paternity of an unborn child. Burns' 1946 Replacement, § 3-633. p. 268.
5. BASTARDS — Proceedings — Pleading — Form and Sufficiency of Petition. — In proceeding pursuant to statute to establish paternity of and obtain support for a child born out of wedlock, a very general form of petition is permissible, and it need only contain a brief statement of the facts to establish the paternity of the child and a request that defendant be required to fulfill the obligations of a father. Burns' 1946 Replacement, § 3-633. p. 268.
6. BASTARDS — Proceedings — Pleading — Form and Sufficiency of Petition — Held Sufficient. — Where petition to establish the paternity of child pursuant to statute alleged that plaintiff was pregnant with a child conceived out of wedlock, that defendant was the father of such child, and requested that defendant be required to support such child, such petition was sufficient. Burns' 1946 Replacement, § 3-633. p. 268.
7. BASTARDS — Proceedings — Enforcement of Order for Support — Appeal — Referring Cause to Referee without Written Request or Consent of Parties — Not Proper Question upon Appeal. — Upon appeal from an order finding appellant in contempt of court for failure to make support payments as ordered in judgment finding appellant to be the father of plaintiff's illegitimate child, where appellant assigned as error the referring of the original action to a referee without the written request or consent of the parties, such assignment of error was an attempt to raise a claimed error which did not go to the original jurisdiction of the trial court, and could only have been questioned on appeal from the original judgment. p. 269.
8. BASTARDS — Appeal — Assignment of Error — Ruling on Denial of Error Coram Nobis — Not Proper upon Appeal from Enforcement of Support Order. — Where appellant assigned as error the ruling on the order denying his petition for writ of error coram nobis upon appeal from judgment finding appellant in contempt of court for failure to make support payments as required by judgment holding him to be the father of plaintiff's illegitimate child, such assignment of error would have no place in such appeal as it involved a totally separate and different matter than the one involved in the appeal from enforcement of support order, and the appeal from denial of writ of error coram nobis would have to be filed within 30 days from such ruling as required by rules of court. Rules of the Supreme Court, 2-40. p. 269.
From the Juvenile Court of Marion County, Joseph O. Hoffman, Judge.
Action by Eda Geiger against Leonard Jackson upon citation to show cause why defendant was not in contempt of court for failure to make support payments under judgment finding him to be the father of plaintiff's illegitimate child. From judgment holding defendant in contempt of court and ordering him committed to county jail, defendant appeals.
Affirmed.
T. Ernest Maholm, of Indianapolis, for appellant. George S. Dailey, Prosecuting Attorney, Louis A. Whitesell, Juvenile Court Deputy, Samuel E. Garrison, Briefing Deputy, all of Indianapolis, for appellee.
On December 13, 1946, the appellee filed her verified petition in the Juvenile Court of Marion County, Indiana, wherein she alleged "She is pregnant with child and that said child was conceived out of wedlock. That Leonard Jackson (appellant herein) is the father of said child." Following this allegation the petitioner prayed that the appellant be required to fulfill the obligation of a father.
After the birth of the child and with both parties present, the trial was had, which resulted in the finding and judgment that there was born to the appellee on May 20, 1947, out of wedlock, a child; that the appellant was the father of the child and he was ordered to pay the sum of $7.50 per week for its support until further order of the court.
Subsequently the appellant was cited to show cause why he should not be held in contempt for failure to comply with this order, which resulted in a finding and judgment that he was in default in a fixed amount in the payments so ordered for which he was in contempt and that he should be committed to the Marion County Jail until he purged himself. It is from this order and judgment this appeal is taken.
By this appeal the appellant has attempted in various ways to question the jurisdiction of the trial court to render this judgment, for the reason that the original petition filed herein, was not sufficient to confer jurisdiction upon the court to render the original judgment, and that therefore these entire proceedings from their inception were null and void.
This contention is wholly without substance. Nevertheless, we have decided to consider the same. Whether the original petition was defective cannot be raised in this appeal. The record 1-3. discloses that the court had jurisdiction of the subject matter and also of the person of the appellant in the original action. A collateral attack, as here attempted, upon this judgment cannot be made on the ground that the petition upon which the judgment was rendered is insufficient. Tullis v. Shaw (1907), 169 Ind. 662, 83 N.E. 376; Goodman v. Daly, Warden (1929), 201 Ind. 332, 165 N.E. 906. Even on a direct appeal taken from the original judgment, no question could have been raised as to the sufficiency of the petition as the record discloses no demurrer was filed to it. Burns' 1946 Replacement, § 2-1011. Since the adoption of this statute, questions as to the form or substance of a pleading may not be raised for the first time on appeal if not properly questioned in the trial court. Lowery v. State (1925), 196 Ind. 316, 147 N.E. 151, 148 N.E. 197. See Gavit, Indiana Pleading and Practice, p. 590.
In passing, however, we desire to state that in our opinion the petition before us is sufficient. Such petition may, as here, involve the paternity of an unborn child. State ex rel. 4-6. Taylor v. Greene Circuit Court (1945), 223 Ind. 562, 569, 63 N.E.2d 287. In any case a very general form of petition is permissible. All that is required is that the petition shall contain a brief statement of the facts to establish the paternity of the child and a request that the defendant be required to fulfill the obligations of a father. Burns' 1946 Replacement, § 3-633.
The appellant has also assigned as error the referring of the original cause to a referee without the written request or written consent of the parties. This again is an 7. attempt to raise a claimed error which does not go to the original jurisdiction of the trial court and could only have been questioned for what it was worth on an appeal from the original judgment.
Finally, the appellant has attempted in this appeal to assign as error the denial of his petition for a writ of error coram nobis in which he sought relief from the judgment in the 8. original cause. This ruling has no place in this appeal as it involves a totally separate and different matter than the one involved in this appeal. In order for the appellant to have appealed from the ruling on the order denying the petition for writ of error coram nobis, he would have had to appeal from said ruling within thirty days after the date thereof. Rule 2-40, Rules of the Indiana Supreme Court (1946 Rev.). This period of time had expired long before the filing of the transcript herein.
For the reasons hereinabove stated the judgment of the lower court is hereby affirmed.
NOTE. — Reported in 85 N.E.2d 636.