Priest v. Soule

Barrows, J. The plaintiff in error, having been arrested on a warrant duly issued upon the complaint of the defendant in error charging “him with being the father of a child with which she was then pregnant and which was likely to be born a bastard,” gave a bond in due form conditioned for his appearance at the June term of the superior court in Kennebec county and for abiding the order of said court on her complaint in bastardy against him. The case shows that he did enter an appearance at that term, was defaulted on the first day of the next September term, and on the 19th day of said September term was adjudged the father of the child and to stand charged with his maintenance with the assistance of the mother, and to this end to pay certain sums and give certain bonds in accordance with the provisions of It. S., c. 97, § 7. [416] The plaintiff in error claims that there was error in making this adjudication upon a default which was entered up on the first day of the term before the complainant i n bastardy had filed the declaration required by R. S., c. 97, § 5. It appears that this declaration was filed the same day that the adjudication was made, and, presumably, before the entry of the adjudication; for the order in which the entries stand upon the docket signifies nothing. Clerks usually consult their own convenience within the limited space allowed ; and the terms of the adjudication indicate that the judge had the declaration before him when he directed the entry of the adjudication, in which the fact of the birth and the sex of the child as stated in the declaration are referred to. If the plaintiff in error would claim that the adjudication lyas made before the required declaration was filed it is incumbent on him to establish it-. A judgment will not be held to be erroneous where for aught that appears it may have been legally rendered. Spaulding v. Rogers, 50 Maine, 123. Was it error to make the adjftdication upon a default of the defendant entered previous to the filing of this declaration ? We think not. It was no fault of the complainant or of the court that the defendant chose to be defaulted when he was. The complainant could not compel him to appear further. She had taken his bond to abide the order of the court upon the complaint, but she could not insist upon his defending the suit. Where the complaint is instituted in the early stages of gestation it may not infrequen tly happen in some counties that more than one term of court will elapse before the complainant can file the required declaration. If the defendant would not be regarded as assenting to its truth he should be in court to deny it when it is filed and an adjudication upon it is demanded. His submitting to a default before this is done will not prevent the court from proceeding to adjudge him the putative father of the child when the declaration' pomes in. If' the entry of the default before the filing’ of ‘the declar ation in question could be regarded as an-irregularity, it was-caused by the act of' the plaintiff in error ; and a judgment will "not be reversed on error for an irregularity caused by the party complaining. Jewett v. Tom [417] linson, 3 Watts and Serg. 114. If’need were, we should presume a default entered (though not noted on the docket) after the filing of the declaration. A judgment against a defendant who did not in fact plead or appear is not reversible because the record fails to show that he was solemnly called, and came not, &e. Hart v. Flynn, 8 Dana, 190. The defendant in the original process here, if he supposed he had any valid defense to the charge made against him by Annie Soule, should have presented it at the court at which he was called upon to appear. It was open to him to move to have the default taken off if he found anything in the declaration which he was able to deny. His remedy, after judgment thus entered upon his default, if the same was suffered inadvertently when he had a good defense, is by petition for review. The only errors in the original process of which we can take cognizance here are those which the plaintiff in error alleges and establishes. The only ground upon which he claims to maintain a writ of error not being tenable, the entry must be. Judgment affirmed with costs. Walton, Danfobth, Libbey and Symonds, JJT., concurred.