Opinion
No. 17,646.
Filed September 30, 1947.
1. ILLEGITIMATE CHILDREN — Bastards — Statutes — Nature and Form of Remedy. — Bastardy proceedings are created and conferred by statute. The rights of the parties are given, controlled and limited by statute, and the mode of proceeding therein prescribed must be followed. p. 553.
2. ILLEGITIMATE CHILDREN — Statutes — Proceedings Under Bastardy Laws — Parties. — Where a bastardy proceeding is brought by the "State of Indiana, ex rel. Evelyn Morrow, by Dell Morrow, her next friend," a demurrer to the complaint will be sustained as the cause must, as provided by statute, be brought by another. p. 553.
From the St. Joseph Probate Court; J. Clifford Potts, Judge.
Action by the State of Indiana, on the relation of Evelyn Morrow, by Dell Morrow, her next friend, against Richard Fisher, to establish the parentage of the child of Evelyn Morrow and for support. From a ruling overruling demurrer to the complaint, the defendant appealed.
Reversed. By the court in banc.
Charles Davis, of Mishawaka, for appellant.
This action was brought against the appellant by the "State of Indiana, ex rel. Evelyn Morrow, by Dell Morrow, her next friend." The complaint seeks to establish the appellant as the father of the illegitimate child of Evelyn Morrow, who is alleged to be 20 years of age; and for the support of said child.
The appellant demurred to the complaint on the ground that on its face it discloses the cause of action to reside in Evelyn Morrow, and not in the plaintiff. He assigns error in the overruling of the demurrer.
An action of this character is created and conferred by statute. The rights of the parties are given, controlled and limited by statute, and the mode of proceeding therein 1. prescribed must be pursued. Reeves v. The State ex rel. Ellis (1871), 37 Ind. 441; Beckett v. The State ex rel. Rothert (1892), 4 Ind. App. 136, 30 N.E. 536; Brown v. State ex rel. Pavey (1932), 94 Ind. App. 669, 182 N.E. 263. This case is governed by ch. 112 of the Acts of 1941.
Section 9 of the Act, being § 3-631, Burns' 1946 Replacement, provides that an action to compel support may be brought by the mother, or if she be insane, of unsound mind, a minor, or under any other disability, by her guardian or next friend. We find no statutory authority for the prosecution of such an action in any other manner.
Since the complaint pleads a cause of action maintainable only by another, the demurrer should have been sustained. The Lake Shore and Michigan Southern Railway Company v. Foster 2. (1885), 104 Ind. 291, 4 N.E. 10; State ex rel. City of Loogootee v. Larkin (1941), 218 Ind. 382, 33 N.E.2d 112; Michael v. Mitchell (1947), 118 Ind. App. ___, 73 N.E.2d 363.
Reversed and remanded with instructions to sustain demurrer.
NOTE. — Reported in 74 N.E.2d 743.