Opinion
No. 159710.
1947-01-29
HARRIS v. JONES.
Stanley Denlinges and Louis Mascolo, both of Akron, for appellant. Geo. Bailey and John Bailey, both of Akron, for appellee.
Action by Dorothy Harris against Delbert Jones under the bastardy statute. From a judgment for plaintiff, defendant appeals.
Affirmed.Stanley Denlinges and Louis Mascolo, both of Akron, for appellant. Geo. Bailey and John Bailey, both of Akron, for appellee.
WATTERS, Judge.
The question here is briefly this-whether the father, under the bastardy statute, General Code, § 12123, 119 Ohio Laws, 731, effective 1941, can be compelled to pay for the child's support from its birth to the time of the adjudication which finds that he is the father.
The present § 12123, General Code, effective September 5, 1941, 119 Ohio Laws 731, provides in part as follows:
‘And the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with cost of prosecution, and a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age.
‘In the event the child is not born alive, or is not living at time of said plea or finding of guilty, the court shall order the accused to pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expense caused by pregnancy, including therein a reasonable amount for maintenance of the child until its death, and its funeral expenses, etc.’
It will be noted that if the child dies before the hearing, the father pays for its support until it dies and also funeral expenses of the child. However, if the child lives, the father pays for the support of the child up to eighteen years of age, and this court holds, from its birth.
This is obvious and sensible. If the child dies before trial, he pays from birth to time of death, plus funeral expenses. If it lives, he pays until the child reaches the age of eighteen years. But from when?
If the legislature had meant to give no support for the child between birth and adjudication, it could have said so. It simply says that if it lives, then he supports it until it reaches the age of eighteen years, and I hold from its birth. Any other interpretation, in view of the statute as a whole, is a strained one.
In the case of State ex rel. Griffin v. Zimmerman, 67 Ohio App. 272, 36 N.E.2d 808, the majority of that court held (117 Ohio Laws, 808 which is General Code § 12123, as it became effective in 1938) that the father could not be held to support the child from birth to date of the adjudication. The law (G.C. § 12123) for our purpose was the same as the present law here involved (119 Ohio Laws, 731).
It will be noted that Judge Crow dissented. However our Court of Appeals has passed on this question under our present law. The Court of Appeals ruled contra to 67 Ohio App. above and held that the father had to support the child from birth up to the adjudication. See State ex rel. Rosemary Fisher v. Elmer H. Davis, No. 3687 Ninth District Court of Appeals, decided November 6, 1944. This is an unreported case. The court found their ruling contra to 67 Ohio App. 272, 36 N.E.2d 808 , and ordered the case certified. However the case never went to the Supreme Court.
In view of the above, this court will affirm the judgment below of Judge Zook. Exceptions.