Sweet v. Sherman

The opinion of the court was delivered by Bennett, J. We think the motion of the defendant to dismiss his own exceptions is without foundation. The grounds, upon which the motion is based, are, that the plaintiff has intermarried since the case came into this court, and that the husband has neglected to join with the wife in the prosecution of the suit by an entry of their names on the docket of the court, on or before the third day of the term next after the marriage. The statute — Rev. St. 329— provides, that, if a woman shall commence an action, or suit, and marry before final judgment, the suit shall notábate, but the husband may prosecute the suit with her, by giving bonds for costs of prosecution and entering their names upon the docket. If this be not done, the defendant may file a certificate of the marriage and have judgment-against them for his costs. If it be assumed, that the statute extends to a proceeding like this, while pending in the county court, — which I am led to doubt, [29] —still it is obvious, that this motion should not prevail. There had been, before the marriage, a final judgment in the county court; and the defendant had brought the case into this court upon exceptions to reverse it. The proceeding is a proceeding in error, and the defendant in the original suit may be regarded as the prosecutor upon the exceptions. If the exceptions do not prevail, the judgment of the county court is left in full force; and if the defendant should succeed in getting his own exceptions dismissed, I do not see but the same result must follow. The motion to dismiss is therefore overruled. We see no ground of error in the proceedings of the county court on the trial. It is claimed, that the county court erred, in not permitting the plaintiff to be asked the question, whether she had not consulted a physician in reference to procuring an abortion. It is quite obvious, that to have allowed the inquiry would have been improper. Let the question have been answered as it might have been, the answer could have had no tendency either to have proved or disproved the fact, whether the defendant was the father of the child, or not, — which was the point at issue. If there were no other reason, why the question should not have been asked, this was sufficient. Certainly, it could not be claimed as proper matter by way of impeaching the witness. It is claimed, that the county court erred in permitting evidence to be given of the general good character of the plaintiff for truth and veracity It appears from the case, that the defendant had given in evidence the declarations of the complainant, which went to show, that some other person than the defendant was the father of the child. This was inconsistent with her testimony on the stand, and had the effect to impeach her as a witness, upon the ground that she had given a different relation, in regard to the paternity of the child, from the one given on the stand. It was held in the case of State v. Roe, 12 Vt. 111, that where, on the cross examination of a witness, it appeared he had given a different relation from the one given on the stand, the party calling the witness might sustain him by proof of his general good character for truth. That case was decided upon the authority of a previous decision, of the like import, in the case of Fuller v. Sanford. The question, then, decided in that case, we should regard as at rest in this state, what [30] ever the rule may be in England. The only question open is, does the present case come within the rule which we have established 1 It is true, the complainant is made a witness by statute, in relation to the paternity of the child; but we see no reason, why the same rule should not be adopted in relation to sustaining her, when impeached, which would be applied to a common law witness; and it can make no difference, whether it appear from the cross examination, or from the examination of other witnesses, that the witness on the stand has given a different relation from the one given on the trial. Some other questions were made on the trial; but we do not deem them of sufficient importance to occupy any time. In regard to the denial, by the county court, of a review of the cause, it may be said, that the statute has received but one practical construction; and that has been in unison with the ruling of the county court. This cannot be regarded as an action, within the purview of the statute, allowing either party once to review his cause. The object of this proceeding is to procure an order of filiation upon the putative father, and thus compel him to aid the mother in the support of the child, — and not to recover a sum in damages, for any independent claim, which she may have against the father. The result, then, is, the judgment of the county court is affirmed.