Opinion
No. 28837.
October 13, 1930.
BASTARDS. In bastardy proceeding, verdict for plaintiff for ten dollars monthly for sixteen years held unobjectionable ( Hemingway's Code 1927, section 231).
The verdict pursuant to Hemingway's Code 1927, section 231, Code 1906, section 277, read: "We, the jury, find for the plaintiff and fix damages for support, maintenance and education of bastard child, D.D.E., Jr., at ten dollars per month and that same be paid in monthly installments for period of sixteen years."
APPEAL from circuit court of Amite county. HON. R.L. CORBAN, Judge.
E.A. Whittington, of Liberty, and J.S. McGuire, of McComb, for appellant.
Certainly the appellant is entitled to an instruction as to whether or not he is impotent and incapable of having children under the evidence introduced. This is an old common law rule and is still the law of the land.
Herring v. Goodson, 43 Miss. 392.
Appellant contends that the verdict in this case should read for sixteen years and during the life of the child not for sixteen years alone. Tucker Tucker, of Woodville, for appellee.
This court has held that a verdict of the jury, for the plaintiff in the sum of five dollars per month for the term of ten years, to be paid in monthly installments was not objectionable.
Ham v. West, 117 Miss. 340, 78 So. 291.
In a bastardy proceeding wherein Mrs. Maggie Hughes, the appellee, was the plaintiff, and Dave D. Emmerick, the appellant, was the defendant, the jury returned into court the following verdict: "We the jury find for the plaintiff and fix the damages for the support, maintenance and education of the bastard child, Dave D. Emmerick, Jr., at ten dollars per month and that same be paid in monthly installments for a period of sixteen years." And the court below entered a judgment in accordance with this verdict.
The only assignment of error worthy of written comment from us is as to the form of the judgment. The applicable part of section 231, Hemingway's Code 1927, section 277, Code 1906, is as follows: "If the jury shall find for the complainant [in a bastardy proceeding], it may assess such damages as it may think proper in her favor, or in favor of the child, if the mother be dead, and may direct the same to be paid annually or otherwise for any term of years not exceeding eighteen, and the court shall render judgment accordingly."
In the case at bar the jury, in effect, returned a verdict in favor of the plaintiff for the sum of one thousand nine hundred and twenty dollars payable in monthly installments of ten dollars each for a period of sixteen years, and the statute authorizes and provides for just this kind of verdict.
The appellant, however, says that the verdict as rendered and the judgment as entered for the purpose of providing support for the child, in event of the death of the child, would operate in favor of the child's estate.
There seems to be nothing in the language of the statute that would prevent a verdict for a lump sum. However, it is unnecessary for us to decide this question, for the verdict and judgment are each precisely according to the provisions of the statute, and if and when the situation shall change, the question will then be properly presented for decision.
In the case of Ham v. West, 117 Miss. 340, 78 So. 291, substantially this verdict and judgment was approved.
The other assignments of error are without merit.
Affirmed.