Abbildungen der Seite
PDF
EPUB

in a civil action. A motion may be made at any time to reinstate an attorney who has been suspended or removed. (781.)

[blocks in formation]

987. Filing is lien on realty.

[blocks in formation]

988. No abatement if mother dies-Proceedings- 999. Defendant dying, action survives. Evidence.

(2 R. S. 1852, p. 485. In force May 6, 1853.)

978. Verified complaint- Warrant. 1. When any woman who has been delivered of or is pregnant with a bastard child shall make a complaint thereof in writing, under oath, before any Justice of the Peace, charging any person with being the father of such child, such Justice shall, by his warrant, cause such person to be arrested and brought before him. 1. Section 386 does not apply in bastardy.- Davidson v. State, 62 Ind. 276.

2. A child begotten before, but born after, marriage, is not a bastard; and where a prosecution for bastardy is pending, and the parties marry, this is sufficient bar thereto. Doyle v. State, 61 Ind. 324; Moran v. State, 73 id. 208.

284

3. The complaint should be in the name of the mother.- Kinder v. State, 70 Ind.

979. Trial. 2. Upon the arrest of such person, or the return of the warrant that he can not be found, such Justice shall proceed to hear and determine such complaint.

980. Style of suit-Evidence-Woman a witness. 3. The prosecution shall be in the name of the State of Indiana, on the relation of the prosecuting witness; but the rules of evidence shall be the same as in civil cases, and the mother of the child, if of sound mind, shall be a competent witness.

1. The State may appeal from the judgment of the Justice in such a cause.— Galvin v. State, 56 Ind. 51.

2. As to intercourse by the mother with others than the defendant, and testimony concerning same, see Walker v. State, 6 Blackf. 1; Townsend v. State, 13 Ind 357; O'Brien v. State, 14 id. 469; Thompson v. State, 15 id. 473; Whitman v. State, 34 id. 360; Keating v. State, 44 id. 449; Kintner v. State, 45 id. 175; Cunningham v. State, 65 id. 377.

3. The child can not be submitted for inspection to a jury, to determine, by comparison, its paternity. Risk v. State, 19 Ind. 152.

4. An appeal lies from a judgment where there is no finding, but not from a finding upon which there is no judgment.-State v. Brown, 44 Ind. 329; Askren v. State, 51 id. 592; Smith v. State, 67 id. 61.

5. A prosecution for bastardy is a civil proceeding: the defendant can testify in his own behalf. State v. Evans, 19 Ind. 92; Ford v. State, 29 id. 541; Dibble v. State, 48 id. 470; Hawley v. State, 69 id. 98.

6. The evidence of a married woman is competent, in such proceeding, to prove non-access by the husband and the illegitimacy of a child born during marriage.Cuppy v. State, 24 Ind. 389; Dean v. State, 29 id. 483.

7. The written examination of the mother, in case of her death, is evidence for the prosecution.-Broyles v. State, 47 Ind. 252. But the original complaint is not.-Id., 64 id. 460.

981. Bond to appear in Circuit Court - Commitment. 4. If the Justice, on hearing, adjudge the defendant to be the father of such child, he shall, if such defendant is in custody, require him to give bond in a sum not less than two hundred nor more than ten hundred dollars, with sufficient sureties, payable to the State of Indiana, and conditioned that he will appear at the next term of the Circuit Court of such county to answer such complaint, not depart without leave, and abide the judgment and orders of such Court; or, failing therein, that he will pay such sums of money and to such person as may be adjudged by such Court; and shall transmit such bond, together with a transcript of his proceedings and the other papers in the cause, without delay, to the Clerk of the Circuit Court of the proper county. And if such defendant shall fail to give such bond, such Justice shall commit him to jail until discharged by law. Such bond, or any bond given by such defendant on any continuance or arrest may be put in suit by any person in whose favor the Court may adjudge any sum of money in such prosecution.

I. A discharge of the defendant is no bar to further prosecution-State v. Allen, 4 Blackf. 269; Davis v. State, 6 id. 494; State v. Barbour, 17 Ind. 526.

982. Bond after commitment. 5. Any person committed to jail for failure to give such bond may be discharged from custody, by filing, at any time after his commitment, with the Clerk such bond to the satisfaction of such Clerk; and a certificate of the Clerk to the Sheriff shall be sufficient to authorize him to discharge said defendant from custody.

983. Trial as in civil cases. 6. The trial and continuance thereof of such prosecution, both before the Justice and in the Circuit Court, shall, in all respects not herein otherwise provided for, be governed by the law regulating civil suits.

984. Justice must write woman's evidence. 7. The testimony of the mother shall be by such Justice reduced to writing, read carefully to such witness, and by her be signed; and shall, by such Justice, be returned to the Circuit Court with the other papers in such case, to be used by either party to sustain or impeach the testimony of such witness. The failure of the Justice so to do shall not be ground of dismissal in the Circuit Court; but such Justice shall recover no fees in such case.

1. If the written examination of the mother be offered in evidence, all of it must be read together.-Wolf v. State, 11 Ind. 231.

985. Bond upon continuance. 8. Upon any continuance granted either party, the Court or Justice granting the same shall require of the defendant a like bond as is required in the fourth section [8981], or commit him to jail for failure to give such bond; and such defendant may be discharged from custody in the same manner as in the fifth section of this Act [§ 982] provided.

986. Trial in absence of defendant-Transcript. 9. If the defendant shall not have been arrested, or has escaped after arrest, such trial shall proceed in his absence; and if he be adjudged the father of such child, the Justice shall transmit the papers and a transcript of such judgment, without delay, to the Clerk of the Circuit Court of the proper county, who shall file and docket the same for trial; and such cause shall be heard and determined by such Court in the same manner as if such defendant were present.

987. Filing is lien on realty. 10. The filing of such transcript, as in

the preceding section of this Act provided, shall operate, from the time of such filing, as a lien upon the real estate of the defendant to the extent of the judgment which may afterward be rendered against him in such prosecution; and such judgment shall have the same effect and lien as if rendered at the time of such filing; and such lien shall be declared in such judgment. 988. No abatement if mother dies- Proceedings - Evidence. 11. The death of the mother shall not abate such suit, if the child be living; but a suggestion of record of the fact shall be made, and the name of the child substituted in the proceedings for that of the mother, and a guardian ad litem shall be appointed for that purpose, who shall not be liable for costs; and in such case, the testimony of the mother, taken in writing before the Justice, may be read in evidence, and shall have the same force as if she were living, and had testified to the same in Court.

989. When Clerk to issue warrant - Bond- Commitment. 12. When the defendant is not in custody, or under bond, and a transcript has been filed, as in the ninth section [§ 986] required, the Clerk of the Circuit Court shall issue to the Sheriff of any county where such defendant may be alleged to be, a warrant for his apprehension; and such Sheriff, if he arrest such defendant, shall require of him such bond as is in the fourth section [981] required; and on his failure to give the same to the satisfaction of such Sheriff, he shall commit him to the jail of the county where such trial is pending.

990. Trial in Circuit Court. 13. If the defendant, in the Circuit Court, deny the charge, the issue shall be tried by the Court or a jury.

1. As to jury findings and right of defendant to jury trial, see Wolf v. State, 11 Ind. 231; Dean v. State, 29 id. 483; Stone v. State, 33 id. 538; Cunningham v. State, 35 id. 373; Miller v. State, 71 id. 601.

991. Judgment against defendant. 14. If such jury find that the defendant is the father of such child, or such defendant, in Court, shall confess the same, he shall be adjudged the father of such child, and stand charged with the maintenance and education thereof.

[1877, p. 5. In force July 2, 1877.]

992. Order to pay-Commitment - How released. 15. Such Court shall, on such verdict and judgment, make such order as may seem just for securing such maintenance and education to such child, by the annual payment to such mother (or if she be dead or an improper person to receive the same, to such other person as the Court may direct) of such sums of money as may be adjudged proper, and shall render judgment for the same, specifying the terms of payment; and shall require of such defendant, if he be in custody, to replevy such judgment by good freehold surety, or, in default thereof, shall commit such defendant to jail. And should the defendant fail to replevy or pay said judgment, and in default thereof be committed to jail, and upon proof thereof being made to the Court, that the defendant has been imprisoned in the jail of the county for a period of twelve months from the date of his imprisonment, and that he is unable to pay or replevy the same, he may be released from imprisonment by an order of the Court, made at any regular term of said Court; which order of release shall be entered upon the records of said Court.

1. As to judgment for support and maintenance of child, see Bright v. Sexton, 18 Ind. 186; Medler v. State, 26 id. 171; Marlett v. Wilson, 30 id. 240; Reynolds v. La Mount, 45 id. 308; State v. Mullen, 50 id. 598.

2. If the defendant be not in custody, a judgment, ordering him to jail until the sum adjudged be paid or replevied, is unauthorized, and he should be discharged on habeas corpus.-- Patterson v. Pressly, 70 Ind. 94.

3. The committal of the defendant for non-payment of costs and judgment is valid and constitutional.- Teague, ex parte, 41 Ind. 278; Reynolds v. La Mount, 45 id. 308; Turner v. Wilson, 49 id. 581.

[2 R. S. 1852, p. 485. In force May 6, 1853.]

993. Execution without relief. 16. Execution may issue on such judgments, whenever any amount is due on the same; and shall be executed without any relief whatever from valuation or appraisement laws.

1. A defendant can not be discharged under the insolvent law. Lower v. Wallick, 25 Ind. 68; Turner v. Wilson, 49 id. 581.

2. A bond in bastardy binds the surety for the full amount of the judgment.- Burr v. Wilson, 50 Ind. 587; Turner v. State, 66 id. 210.

3. The surety in a bastardy bond has the right to his bail-piece, and may execute it wherever the defendant may be found.- Turner v. Wilson, 49 Ind. 581.

[1875 S., p. 16. In force August 24, 1875.]

994. Suit, how dismissed-Entry. 17. The prosecuting witness, if an adult, may, at any time before final judgment, dismiss such suit, if she will first enter of record an admission that provision for the maintenance of the child has been made to her satisfaction; and if such witness be a minor, she may dismiss such suit, if it be first shown to the satisfaction of the Court in which the same is pending, that suitable provision has been made and properly secured for the maintenance of the child, and a finding of the Court to that effect entered of record. And such entry, in either case, shall be a bar to all other prosecutions for the same cause and purpose. 1. The admission must be entered of record. Provision, without admission of record, is no bar.- Harness v. State, 57 Ind. 1; Fisher v. State, 65 id. 51.

2. Notes given in settlement of a prosecution for bastardy are valid.-Garriott v. Abbott, 28 Ind. 9; Compton v. Davidson, 31 id. 62. Death of the child after their execution does not affect their validity.- Allen v. Davison, 16 Ind. 416; Potter v. Earnest, 45 id. 416. Nor the infancy of the maker-defendant.—Gavin v. Burton, 8 Ind. 69; Whittem v. State, 36 id. 196.

[2 R. S. 1852, p. 485. In force May 6, 1853.]

995. Limitation two years. 18. No prosecution under this Act shall be instituted after two years from the birth of such bastard child.

996. Judgment may be reduced on child's death. 19. Upon the death of any bastard child after judgment rendered as aforesaid, and before the expiration of the time limited for the last payment on such judgment, the Court rendering such judgment may make such reduction in the amount of the same as may be rendered proper and just in consequence of such death.

997. Child's death not to abate or bar. 20. The death of a bastard child shall not be cause of abatement or bar to any prosecution for bastardy; but the Court trying the same shall, on conviction, give judgment for such sum as shall be deemed just.

1. The death of the child does not affect proceedings after verdict.- Evans v. State, 58 Ind. 587.

2. The still-birth of the child after verdict and before judgment is no cause for a new trial or for arrest of judgment.— Evans v. State, 58 Ind. 587.

998. Prosecutor conducts suit. 21. The several Prosecuting Attorneys within their respective Circuits shall prosecute all causes originating under this Act.

999. Defendant dying, action survives. 22. In case of the death of the putative father of such child, either before or after the commencement of prosecution, and after the preliminary examination before the Justice, the right of action shall survive, and may be prosecuted against the personal representatives of the deceased with like effect as if such father were living, except that no arrest of such personal representatives shall take place or bond be required.

1. The right to prosecute survives against the estate of the putative father.- State v. Williams, 8 Ind. 191. And the mother is a competent witness.- State v. Han, 23 id. 539.

SEC.

1000. 1001. 1002.

ARTICLE 34—CHANGE OF NAME.

Petition to Circuit Court.
Application, where made.
Notice by publication.

SEC.
1003.

Proof of publication.

1004. Copy of decree evidence.

[2 R. S. 1852, p. 238. In force May 6, 1853.]

1000. Petition to Circuit Court. 1. The Circuit Courts in the several counties of this State may change the names of persons and corporations, on application by petition.

1001. Application, where made. 2. The application of a person may be made to the Circuit Court of the county in which such person resides, and of a corporation to the Circuit Court of the county in which such corporation is situate or in which its principal office is located.

1002. Notice by publication. 3. Upon a petition being filed for such change, the applicant shall give notice thereof by three weekly publications in some newspaper of general circulation printed and published in the proper county, or, if no newspaper be printed therein, in a newspaper printed and published nearest thereto in some adjoining county, thirty days prior to the first day of the term at which such petition shall be heard.

1003. Proof of publication. 4. Proof of the publication required. in this Act shall be made by filing a copy of such published notice, verified by the affidavit of a disinterested person; and when such proof of such publication is made, the Court shall proceed to hear and determine said petition, and make such order and decree therein as to such Court shall seem just and reasonable.

1004. Copy of decree evidence. 5. A copy of the decree of such Court, changing the name of any person or corporation, certified under the seal of such Court by the Clerk thereof, shall be sufficient evidence of the name of such person or corporation, and of such change having been made, in any Court of this State.

[blocks in formation]

1. Every person

1005. Direct-Disturbing business of Court. who shall, by the commission of any felony, misdemeanor, or other unlawtul act; or who by talking, moving about, or by signs, or gestures, or in any

« ZurückWeiter »