Peters v. Killian

Ames, 0. This is what is commonly called a “proceeding in bastardy,” pursuant to chapter 37 of the Compiled Statutes. In the justice’s court, as appears from the transcript of the justice, the defendant therein, plaintiff in error here, by his attorney, offered to confess judgment for the benefit of the complainant for the sum of $175 and costs, and offered to pay said sum and costs into court for her use; but it does not appear that she accepted of or consented to such judgment or payment, or that the transaction had any of the features of a settlement such as is contemplated by section 1 of the chapter. Nor does it appear that any bond such as’ is prescribed was given or offered to be given to the county commissi oners of the county, and in [58] the absence of snch a settlement the justice is not authorized to accept such a bond. The defendant was then recognized to appear at the next term of the district court for the county in the manner provided by the statute. In the district court the defendant filed a verified answer, in which he admitted his paternity of the child, then born, and admitted that the complainant was and had hitherto been an unmarried woman, and averred affirmatively that he and the complainant had made some time previously “a verbal agreement” by which he was to pay her $175 in full settlement of all matters and differences between them, which amount he offered to pay to the clerk for her benefit, and further offered to pay all costs accrued in the cause. In addition to this the defendant pleaded certain matters tending to show, as he claimed, that he was, and that the complaint was not, a suitable person to have the care, custody, nurture and education of the child, and prayed that he be awarded the same and that the alleged settlement be by the judgment of the .court carried into effect. All this affirmative matter, together with the offers it contained, was by the court, on motion of the complainant, stricken from the answer. Afterwards, upon motion of the complainant and upon the confessions remaining in the answer, the court entered the usual judgment against the defendant, determining the paternity of the child and adjudging the sums to be paid for its maintenance and the time and manner of their payment, and requiring the defendant to give security for obedience to the judgment in the manner provided by the statute. The defendant brings the case here by a petition in error, but we are unable to discover any error in the record. Proceedings in such cases are purely statutory and the courts can try such issues and make' such orders, in them, as the statute contemplates and none other. A settlement between the parents of an illegitimate child, in order to be operative as a stay or termination of such proceedings, must be of such nature and made and attested in such manner as the act prescribes, and the district court [59] can take judicial cognizance of none other. In that proceeding the court can not try the issue whether the father or the mother of the child is the more suitable person to be entrusted with its custody. We recommend, therefore, that the judgment of the district court he affirmed. Duffie and Albert, OH, concur. By the Court: For the reasons stated in the foregoing opinion, the judgment of the district court is Affirmed.