State, Ex Rel. v. Eacret , 86 Ind. App. 662 ( 1928 )

Proceeding in bastardy. In her affidavit filed as the complaint, August 2, 1926, relatrix stated that defendant, appellee herein, was the father of her unborn child. The justice of the peace immediately issued and placed in the hands of Avis Dutcher, special constable, a writ, returnable forthwith, for the arrest of defendant. On September 18, 1926, Dutcher died without having executed, or made return of, the writ. While the writ for the arrest of defendant was in the hands of Dutcher, on August 25, 1926, relatrix gave birth to the child, which was stillborn. On November 1, 1926, the justice of the peace issued a new writ, on which the defendant was arrested and brought into court. The evidence being heard, the justice of the peace found that the defendant was the father of the child, and made an order that he appear before the Warren Circuit Court at the next term thereof, fixing bond at $200. When the cause came on for hearing in the circuit court, the defendant filed an answer setting up the above facts as to the filing of the complaint, the issuance of the writ, the death of the constable and the birth of the child, it being the theory of the answer that no action had been commenced against appellee before the delivery of the child, and that since the child was stillborn, the action could not be maintained. To the answer plaintiff demurred for want of sufficient facts, the demurrer was overruled and plaintiff refusing to plead further, judgment was rendered in favor of appellee, as upon default. This appeal followed.

Action of the court in overruling the demurrer is assigned as error.

Section 1 of the Bastardy Act (2 R.S. 1852 p. 485, § 1049 Burns 1926), authorizes the commencement of a proceeding in bastardy in a justice of the peace court, upon the filing, by a woman, 1. of an affidavit that she has been delivered of, or is pregnant with, a bastard child. Section 20 of the same act (2 R.S. 1852 p. 490, § 1068 Burns 1926) provides: "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." The Supreme Court, construing these provisions of the act, has held that a proceeding in bastardy cannot be commenced after the birth of the child, if the child was stillborn. Canfield v.State, ex rel. (1877), 56 Ind. 168. See, also, Robinson v.State, ex rel. (1891), 128 Ind. 397, 27 N.E. 750; Lewis v. Hershey (1910), 45 Ind. App. 104, 106, 90 N.E. 332.

The law is well established in this jurisdiction that the commencement of an action dates from the time the writ was regularly delivered to the officer for service. § 55 Code 2. Civ. Proc., § 332 Burns 1926; Fordice v. Hardesty (1871), 36 Ind. 23; Alexander Gas Co. v. Irish (1899),152 Ind. 535, 53 N.E. 762; Marshall v. Matson (1908),171 Ind. 238, 86 N.E. 339.

Under the facts of this case, as above stated, when was the action commenced? If commenced November 1, that was after the delivery of the child stillborn, and the judgment of the trial court must be affirmed. On the other hand, if the action was commenced August 2 — a date prior to the delivery of the child — then the judgment must be reversed.

It is the contention of appellee, and the trial court held, that the action which was commenced on August 2, was abandoned, and that by the issuance of the writ of November 1, a new action was commenced as of that date. We concur in that view.

In order that the issuance of process to a serving officer may operate as the commencement of the action as of the time of the issuance, the writ must be executed, or must be kept alive 3. by an alias writ or by pluries writs until duly served; there must be no discontinuance of process in the meantime. Chitty in discussing the question, says: "If the proceeding should be by writ of summons, then the plaintiff, or his attorney must return `non est inventus' and enter the same of record in due time. * * * If it be necessary to continue the first writ of summons, then an alias or pluries may be issued into the same or another county; and it is very essential to take care that the first writ, whether of summons or capias, be in due time returned non est inventus, and that every continued process to save the statute of limitations must have a memorandum indorsed or subscribed, specifying the date of the first writ." Chitty, Practice 408. To the same effect, see Jones v. Mackey (1895), 2 Lack. Leg. N. (Pa.) 375; Boggs v. Symmes (1832), 8 Rich. (S.C.) 443; Fulbright v. Tritt (1837), 19 N.C. 491; Hatch v. Alamance R. Co. (1922), 183 N.C. 617, 112 S.E. 529; Geisen v. Karol (1928), ante 653, 157 N.E. 469.

We hold that there having been no execution of the original writ, and no alias issued thereon, the issuance of the writ of November 1 was an abandonment of the original action and 4. the commencement of a new one.

Affirmed.