Town of Seymour vs. David Belden

Town of Seymour vs. David Belden. Upon a proceeding by a town against the father of a bastard child under the statute, (Rev. Stat.. tit. 7, ch. 5,) the court has no authority to order the defendant to pay a weekly sum for the support of the child, such order being authorized only in the case of a suit instituted by the mother of the child. Where such an order had been made, it was held that the judgment might be reversed upon a writ of error brought by the plaintiffs themselves, although it was in their favor, as they were entitled to a legal judgment which they could enforce. Bastardy suit. The suit was brought by the town of Seymour, under the provisions of the 31st section of the act with regard to domestic relations, (Rev. Stat., tit. 7,) which provides that upon such suit, if the defendant is found guilty the court shall make an order that he shall give a bond with surety to indemnify the town against all expense for the maintenance of the child. The defendant was found guilty, but the court erroneously made an order that he should pay a certain sum per week, to be applied to the support of the child, and should give bond for such payment, under the provisions of the 30th section of the same act, which applies solely to the case of a suit brought by the mother of the child. On discovering £ *444 ] the error the plaintiffs brought a writ of error *to this court to reverse the judgment. The counsel for the defendant contended that, as the judgment was in favor of the plaintiffs and passed at their own request, they were not aggrieved by it, and could not procure its reversal. Webster, for the plaintiffs. Wooster, for the defendant. [MAJORITY — Sanford, J.] Sanford, J. The liability of the putative father of an illegitimate child for its support, is regulated entirely by statute. (Rev. Stat., tit. 7, chap. 5.) The judgment in the case before us would have been appropriate, had the mother of the bastard been the prosecutor ; but the town interested in the support of such child, is authorized to institute and prosecute a suit, only to procure indemnity against its liability to expense for such support. The thirty-first section of the act provides, that “ the town interested in the support of a bastard child, when sufficient security shall not be offered to indemnify such town against all charge and expense for the support of such child, and the mother neglects to bring forward her suit for maintenance, may, by their selectmen, institute a suit,” &c., “ and if the defendant be found guilty, the court shall make an order that he shall_give a bond with sufficient surety to such town, to indemnify it against all expense for the maintenance of such child, and pay the cost of prosecution, and on failure thereof may commit him to the common jail, there to remain until he shall comply with such order.” The right of the town to prosecute, and the authority and duty of the court when the town is prosecutor, are found no where else, and the conclusion is inevitable that the judgment was unauthorized by law. It is however contended that this judgment ought not to be reversed, because it was rendered at the instance of the plaintiffs, is altogether in their favor, and they are not aggrieved by it. _ _ But it was the duty of the court to render the legal ^judgment on (y, whatever the parties or either of [ *445 ] them might desire or ask. The error therefore was the error of the court, and by it the plaintiffs were injured and aggrieved, because it was awarded them instead of a judgment for the security, to which they were by law entitled, while it can in no way be enforced by legal process, as it is upon its face u Jautlioi’ized, irregular and void. The judgment of the superior court must be reversed. In this opinion the other judges concurred. Judgment reversed.