Opinion
No. 28,481.
Filed February 8, 1949.
1. BASTARDS — Proceedings — Pleading — Sufficiency of Petition — "Bastard Child" Used Instead of "Child Born out of Wedlock" — Petition Not Faulty. — In a proceeding to establish the defendant as father of a child born out of wedlock, where the petition contained the words "bastard child" instead of "child born out of wedlock," such words do not make the petition faulty, and since the petition substantially complied with the statute, it was sufficient. Burns' 1946 Replacement, § 3-633. p. 49.
2. COURTS — Jurisdiction — Person and Subject Matter — Faulty Complaint — Court Not Deprived of Jurisdiction. — Where trial court has jurisdiction of the person and subject matter, a faulty complaint would not deprive the court of jurisdiction. p. 49.
3. BASTARDS — Definition of Word "Bastard" — "Bastard Child" and "Child Born out of Wedlock" Are Synonymous. — A "bastard" is a child begotten and born out of wedlock; an illegitimate child; one born of an illicit union; and the words "bastard child" and "child born out of wedlock" are synonymous. p. 49.
4. BASTARDS — Proceedings — Judgment — Defendant's Presence Not Required to Make Judgment Binding. — Judgment establishing defendant as father of child born out of wedlock and ordering payment of support for child was binding on defendant, even though not rendered in his presence, because all findings and recommendations of the referee were in writing and the court properly entered the orders and decrees pursuant to statute, and it was not necessary for judgment to be rendered in presence of defendant. Burns' 1942 Replacement, § 9-3116. p. 50.
5. CONSTITUTIONAL LAW — Due Process of Law — Civil Proceeding by State Court — Alleged Violation of Federal Constitution. — Judgment establishing defendant as father of child born out of wedlock and ordering defendant to pay support for child did not conflict with the Fifth Amendment, U.S. Constitution, because such constitutional provision operates exclusively in restriction of federal power. U.S. Constitution, 5th Amendment. p. 50.
6. CONSTITUTIONAL LAW — Determination of Constitutional Question — Failure to Object to Particular Section of Statute — No Question Raised on Appeal. — Where defendant alleged the statute concerning children born out of wedlock was unconstitutional without citing any particular section of the statute, such objection would raise no question before the Supreme Court. p. 50.
7. CONSTITUTIONAL LAW — Determination of Constitutional Question — Child Born out of Wedlock Statute — Act Is Constitutional. — The child born out of wedlock act as a whole does not conflict with the Constitution of Indiana. Burns' 1946 Replacement, §§ 3-623 to 655, Indiana Constitution, Art. 4, § 19. p. 50.
8. BASTARDS — Proceedings — Trial — Held After Child Is Born — Defendant May Consent to Earlier Trial by Motion. — In a proceeding to establish the defendant as the father of a child born out of wedlock, the trial shall be held after the child is born under the statute, and such statute confers the right on defendant to consent to an earlier trial; however, unless he asks the court for a trial date prior to the birth of the child, it must be held after the child is born. Burns' 1946 Replacement, § 3-637. p. 51.
9. CONSTITUTIONAL LAW — Proceedings Under Bastardy Laws — No Violation of Constitutional Provisions. — In a proceeding to establish the defendant as the father of a child born out of wedlock, there was no violation of certain constitutional provisions as contended by defendant. Indiana Constitution, Art. 1, §§ 12, 13, 20, 21 and 25. p. 51.
10. APPEAL — Briefs — Failure to Brief Portion of Motion for New Trial — Errors Waived. — Upon appeal from a proceeding to establish defendant as the father of a child born out of wedlock, where two paragraphs of the motion for a new trial were not briefed, they are waived under Rule 2-17 (f), Rules of the Supreme Court. p. 51.
11. BASTARDS — Proceedings — Enforcement of Order for Support — Court Has Jurisdiction to Find Indirect Contempt. — The juvenile court, which had rendered a judgment establishing defendant as father of child born out of wedlock and ordering him to support the child, had jurisdiction of the person and subject matter under the statute to find defendant guilty of indirect contempt for failure to comply with court's order to support such a child as required by the judgment. Burns' 1942 Replacement, §§ 9-3102, 9-3103, Burns' 1946 Replacement, §§ 3-644, 3-645, 3-903, 3-905, 3-908 and 3-909. p. 52.
From the Vigo Circuit Court, Juvenile Division; Ernest M. Wright, Judge pro tem.
George Curry was found guilty of indirect contempt of court for failure to comply with court's order to support a child after court had established defendant as the father of a child born out of wedlock to Gertrude Maynard, and the defendant appeals.
Affirmed.
T. Ernest Maholm, of Indianapolis, for appellant.
N. George Nasser, of Terre Haute, for appellee.
This is an appeal from an indirect contempt proceeding arising out of a judgment and order for support rendered in the Vigo Circuit Court, Juvenile Division, establishing the appellant as the father of a child born out of wedlock.
In the original action, the same was tried without the intervention of a jury, and the appellant was found to be the father of the child born to the appellee, and ordered to pay to the clerk of the court the sum of $30 per month, in semi-monthly payments of $15 each. On failure of the appellant to comply with the order of court, he was found guilty of indirect contempt. A Referee of the Juvenile Court heard the case, and, on his written recommendations to the Judge, judgment was rendered. An appeal was not taken in the original action.
The basis for the errors assigned is the alleged failure of the original petition to confer jurisdiction of the person and subject matter, and the entering of the original judgment in the appellant's absence.
The appellant contends that, since the verified petition in the original action contains the words "bastard child," instead of "child born out of wedlock," jurisdiction was not 1-3. conferred upon the court. The original petition complies substantially with § 3-633, Burns' 1946 Replacement, and it is our opinion that the petition was sufficient. The fact that the verified petition in the original action contains the words "bastard child," instead of "child born out of wedlock," does not make the petition faulty. Where the court has jurisdiction of the person and subject matter, a faulty complaint would not deprive the court of jurisdiction. "Bastard child" and "child born out of wedlock" are synonymous. See Webster's New International Dictionary, Second Edition, defining "bastard" as:
"1. . . . a child begotten and born out of wedlock; an illegitimate child; one born of an illicit union."
The appellant contends that the Judge in the original action entered the judgment out of the presence of the appellant. The original action was assigned to a Referee of the Juvenile 4. Court, and was heard by him, he being properly appointed and complying with the statute. All findings and recommendations were in writing, and the court properly entered the orders and decrees. Section 9-3116, Burns' 1942 Replacement (1947 Supp.). In order for the judgment in the original action to be binding, it was not necessary for it to be rendered in the presence of the appellant.
It was contended that the original judgment was in conflict with the Fifth Amendment to the Constitution of the United States. The objection is not well grounded, for this 5. amendment operates exclusively in restriction of federal power. Barrett v. State (1911), 175 Ind. 112, 93 N.E. 543.
The appellant contends that the act of 1941 (Acts 1941, ch. 112, p. 301 et seq.) is unconstitutional, without citing any particular section of the statute which he claims to be 6-7. unconstitutional. This raises no question before this court. It has been held that this statute does not violate Art. 4, § 19, of the constitution of Indiana. In State ex rel. Taylor v. Greene Circuit Court (1945), 223 Ind. 562, 569, 63 N.E.2d 287, 289, the court, in discussing the child born out of wedlock act (§ 3-623 to § 3-655, Burns' 1946 Replacement), said that:
"It is our conclusion that the act in question as a whole is not invalid because it is in conflict with the constitutional provision mentioned."
The appellant's contention that he was not offered the right to consent to an earlier trial is covered by § 3-637, Burns' 1946 Replacement, which confers the right on the 8. appellant to consent to an earlier trial, and unless the appellant asks the court for a trial date prior to the birth of the child, it must be held after the child is born. This court said, in State ex rel. Taylor v. Greene Circuit Court, supra (p. 568 of 223 Ind., p. 289 of 63 N.E.2d):
"However, the statute while providing for the beginning of the action before the birth of the child, further provides in § 15 that unless the defendant consent to an earlier hearing, the hearing shall be continued until the child is born. It is only reasonable to contemplate birth, when pregnancy is established, and that a prospective and provident mother should have the right without unnecessary delay, to take legal action to establish the paternity of her child, is reasonably to be inferred from the title of this act. The act provides that the defendant may be brought into court and held to answer the charge, — the hearing to be had after the child is born."
There appears in the record no violation of §§ 12, 13, 20, and 25 of Art. 1 of the Constitution of Indiana, as contended by the Appellant. Suffice it to say that the court was open, the 9. appellant had a trial, met witnesses face to face, had attorneys representing him, consented to the setting and trial, and, on request, could have had a jury trial. Section 21 of Art. 1 of the Constitution of Indiana is not applicable to this case, as this section covers compensation for services or property.
There was no error committed in the overruling of the motion for a new trial. Numerical paragraphs 1 and 2 of the motion for a new trial being identical to the questions above set out, 10. no further discussion is needed. Numerical paragraphs 3 and 4 of the motion for a new trial, not being briefed by appellant, are thereby waived under Rule 2-17 (f) of this court.
The Juvenile Court of Vigo County has jurisdiction of paternity proceedings by statute. Sections 9-3102 and 9-3103, Burns' 1942 Replacement (1947 Supp.). And the court in this case, upon 11. the filing of the proper verified petition, found the appellant guilty of contempt of court. The court had jurisdiction of the person and subject matter, as provided in §§ 3-644, 3-645, 3-903, 3-905, 3-908, and 3-909, Burns' 1946 Replacement, covering indirect contempt of court.
Judgment affirmed.
NOTE. — Reported in 83 N.E.2d 782.