Connolly v. Anderson

Ames, J. The main question raised in this case is fully disposed of by the recent decision of Young v. Makepeace, 103 Mass. 54. It is there pointed out that under the modification in the Gen. Sts. c. 72, § 7, of the former statutes upon this subject, the final order of affiliation may be passed upon the default of the putative father, and when he is not present in court. The final judgment is that “ he stand charged with the maintenance,” &c., “ in such manner as the court shall order, and shall give bond with sureties to perform said order.” The statute provides also that “he may be committed to prison until he gives such bond.” This order the court has power to enforce by any appropriate process. It may be true, as the plaintiff insists, that the term “ mittimus ” in strictness imports that the party to be committed is in the presence of the court, and within the reach of the officer. But this process is nowhere in the statute termed a mittimus. It is in the nature of an execution, upon which he may be arrested wherever he may be found, and committed to prison, as a means [63] of compelling him to comply with the judgment. The terms of the judgment, from the nature of the case, differ materially from the ordinary forms in common law proceedings. But the subject is within the jurisdiction of the Superior Court; the order is one which it had authority to pass; and the precept is sufficient to protect the officer in serving it. Upon the facts set forth in the record, and assuming them to be true, we see no ground on which the action can be maintained. Judgment for the defendants.