Opinion
May 4, 1950 —
June 6, 1950.
APPEAL from a judgment of the municipal court of the city of Fond du Lac, Fond du Lac county: HAZEN W. McESSY, Judge. Affirmed.
For the appellant there was a brief by Schneider Boyle of Fond du Lac, and oral argument by John Schneider.
For the respondent there was a brief by the Attorney General, William A. Platz, assistant attorney general, and Jerold E. Murphy, district attorney of Fond du Lac county, and oral argument by Mr. Murphy and Mr. Platz.
The plaintiff, by her guardian, complained that on the 13th day of July, 1948, an illegitimate child was born to her. She charged the defendant, Donald Giese, to be the father of said child. The record shows that the defendant appeared at the office of the district attorney, having been advised of the accusation, and that a warrant would be or had been issued. His first visit was in August, 1948. He was again at the office of the district attorney two or three times, where the matter in difference between him and plaintiff was discussed. On October 15, 1948, he entered into an agreement under which he undertook to pay certain expenses connected with the birth of the child and $25 per month toward the support of the child. This agreement was approved by the municipal judge and filed with the court, and the warrant which had been issued, upon such approval, was dismissed without costs. The agreement, drawn in accordance with sec. 166.07, Stats., contained a disclaimer by the defendant of being the father of the child. There was testimony at the time of the approval of the proceedings by the mother that the defendant was the only person with whom She had had sexual relations in the probable period of conception. It appears that the court then examined the defendant, who, under oath, gave his name, his age as twenty-three years, his residence; and he in effect admitted that Iona Ullrich, who signed a complaint, accused him of being the father of her child.
In substance he said: In the agreement I have denied that I am the father, but I have agreed to pay $156.78 within two months. That money is to be disbursed as follows: $92 is to be paid to Iona Ullrich for money which she has paid Misericordia Hospital, and the balance of $64.78 is to be paid to the Catholic Social Welfare Bureau on the balance for lying-in expenses; so the total of $156.78 will be paid within two months, and then beginning November 5th of this year I expect to pay, and agreed to pay, $25 per month for the support of the child until it attains the age of eighteen.
He was asked by the court as to his understanding of the contract and its terms, and, as we have said, by his answers manifested a complete understanding of the matter. The district attorney then asked questions, particularly specifying dates of payment. There was some indication that in the winter time there might be some delay, and the district attorney then asked this question:
" Q. You can pay it on or before the first; in other words, if you pay it the 20th for the next month, that is the same thing. Just so it is in by the first. A. That's right.
" Q. Now, in addition to the amounts that you have, what is on this agreement, there is a further court cost in this matter; there are $34. Now, that likewise I will expect will be paid within two months so that will make it within two months you will have to pay $190.78. That takes care of the lying-in expenses, plus the court costs of $34. Thereafter, you pay $25 the first of each month, starting the first of December; is this agreement satisfactory with you? A. Yes.
" Q. Is this your signature on the reverse side ? A. Yes.
" Q. You have agreed to pay that amount ? A. I ain't sure about the two months; if nothing don't pan out wrong, I will.
" Q. You understand if this is approved, it is expected you will have it in here. A. Yah, if something happens I can't work or something — my brother will help me."
Subsequent to the approval there were defaults, and the district attorney brought the proper proceedings under the statute for judgment according to the terms of the contract. It was conceded that there had been no payments made, and the court, on May 6, 1949, entered judgment as follows:
"It is therefore ordered and adjudged that the defendant pay court costs in the above-entitled matter to the clerk of this court in the sum of $44.
"It is further ordered and adjudged that the defendant pay $156.78 to the clerk of the municipal court of the city of Fond du Lac for the lying-in expenses and past support of said illegitimate child, Donna Mae Ullrich, as provided in paragraph 4 of the settlement agreement filed October 15, 1948.
"It is further ordered and adjudged that the defendant pay to the clerk of the municipal court of the city of Fond du Lac support money as provided in paragraph 5a of the aforementioned settlement agreement, in the amount of $175.
"It is further ordered and adjudged that the defendant pay future monthly support payments in accordance with paragraph 5 of the afore-mentioned settlement agreement as follows: $25 per month beginning with the 5th day of June, 1949, payments to be made on the 5th of each month thereafter until Donna Mae Ullrich shall attain the age of eighteen years, namely: until the 13th day of July, 1966."
During the proceedings the defendant petitioned the court to rescind the contract and sought to support the request by filing affidavits. The allegations set up in the affidavits were denied by the plaintiff, and the court refused to consider the petition. From the judgment the appeal is taken.
The sexual relation indulged in by the appellant and complainant brought him into a situation carrying some well-known liabilities and responsibilities. The statute provides for a dismissal of the illegitimacy proceedings upon the making of the contract referred to. In the defendant's brief it is urged that plaintiff had had intercourse with others during the probable period of conception, but that this was unknown to him when he signed the contract, and that he did not know the effect of it as a defense in the proceeding. Because of this he asks that his agreement to support the child be set aside and that he be enabled to have a trial upon the merits.
Without spending any time upon the unusual features of these proceedings, we are concerned primarily with the consideration of whether there exists any occasion for disturbing the rulings made below. Appellant is seeking nothing less than a rescission of a contract which he entered into under the provisions of a Wisconsin statute. (Sec. 166.07.) Under that statute the agreement is to consider and include a determination of all facts which would be included by a court in its order for judgment in illegitimacy proceedings, except that where the parties are unable to agree as to the paternity of the child. Then the alleged father may deny paternity in the agreement, but he is to be bound by the terms of his agreement. This provision for denial of paternity prevents such child from being considered as the heir of the alleged father. (Sec. 237.06.)
The question of paternity being in dispute, the defendant was permitted to use the compromise provided by secs. 166.07 and 237.06, Stats. There is no claim, and it is not contended that the above facts accompanying the making of the contract "constitute duress nor excusable mistake within any civil-law definitions of those terms; it is contended that the trial court should have considered these facts as elements involved in a determination of whether defendant should be granted a trial upon the merits." (Quoted from defendant's brief.)
The court entered the only judgment that is provided for when this sort of a contract has been entered into and default has occurred in complying with its terms. From the record submitted it quite plainly appears that this case does not present the question whether a new trial should be granted in the interests of justice, as contended by the defendant. We do not consider here the question which may or may not arise because of lack of jurisdiction of the municipal court in the matter of determining an action to rescind a contract further than to say that it appears that the case does not present the ground for such an action. The defendant has entered into a contract advisedly, reserving to himself a benefit which the statute permits. The agreement is a contract and subject to the law of contracts. Gardner v. State (1937), 224 Wis. 549, 272 N.W. 478.
The claim that the defendant did not fully protect himself because of the complaining witness insisting he was the father of the child while he was in ignorance of what he now claims to be her alleged relations with others is not sustained by the testimony. When he entered into the contract, he evidently was advised of circumstances which might warrant his denial of paternity, but some consideration of his relation to the circumstances prompted him to compromise and have the benefit of the agreement without acknowledging paternity.
Whatever the reasons, philosophical or otherwise, which prompted the formation of the statute, this much is certain: It was expected that situations such as this would arise, and that the welfare of a child and the interests of the state would thus be given some consideration. In reading the testimony, one cannot help but be somewhat impressed with the defendant's attitude, when asked as to his ability to make prompt payments, in assuring the court, in the very proceedings where the agreement was to be approved and the case against him dismissed, that in case of default in the matter of making payment, his brother would help him. There is no showing of mistake, no claim of fraud or duress. The defendant entered into the illegitimacy agreement, denying paternity for reasons appealing to him and because in the uncertainty he considered it the wiser course. Under the circumstances, there is much to indicate that he assumed there was, as the trial court put it, "an outside possibility" that he was not the father. Because the record is lacking in proof that could by any means be held to be clear, satisfactory. and convincing that the defendant was taken advantage of, it is considered that rulings below were proper.
By the Court. — Judgment affirmed.