
    Durst v. Griffith.
    (Decided May 24, 1932.)
    
      Mr. Edwin D. Ricketts, for plaintiff in error.
    
      Mr. Eugene Wright, for defendant in error.
   Mauck, P. J.

Geraldine Griffith filed her complaint in bastardy before a justice of the peace charging Ralph Durst with being the father of her unborn child. Durst was arrested and bound over to the court of common pleas. Subsequently the cause was tried in the court of common pleas and a verdict of guilty was returned. Judgment was entered upon that verdict and to that judgment the defendant prosecutes error to this court.

It is strongly urged that the judgment is contrary to the weight of the evidence. The most that we can say in that behalf is that the case was a close one, and under the rule that prevents our substituting our own for the judgment of the jury we find ourselves unable to disturb the verdict and judgment upon that ground.

There are other novel and important questions raised by the record. The defendant in the case was under sixteen years of age. The complainant was seventeen. It is argued that the justice of the peace in the first instance, and finally the court of common pleas, was without jurisdiction in the premises by virtue of the provisions of Section 1659, General Code. That section provides that when a minor under the age of eighteen years is arrested instead of being taken before a justice of the peace or police judge he shall be taken directly before a juvenile judge, or if taken before a justice of the peace such justice shall transfer the case to the juvenile court. It is urged that this section applies because the minor was under the age prescribed by the section referred to and that he was arrested before a justice of the peace and the case was not transferred to the juvenile court.

The exact term by which an action in bastardy should be characterized in this state has always been somewhat puzzling. Without reviewing the well-known authorities it is sufficient to say that since a verdict may be returned upon a preponderance of the evidence and by a three-fourths verdict the proceeding is essentially of a civil nature. It has sometimes been called quasi criminal, but that is because it is instituted by a sworn complaint and jurisdiction of the defendant’s person is obtained by warrant and issue joined by a plea of not guilty, as in a criminal case. This proceeding is criminal only in the form of some of its procedure. Section 1659 is not by its terms limited to criminal proceedings. It first appeared in the statutes in the first juvenile court code enacted in this state. The purpose of the juvenile court statutes was not to effect a change in civil procedure but in criminal procedure.

“The essential feature of these statutes is the creation of a special court, the procedure of which is less formal and more paternal than that of the regular criminal courts, and in which the child is protected from publicity and from association with adult criminals.” 14 Ruling Case Law, 277.

Elsewhere the object of juvenile court laws is thus stated: “While at common law an infant who had violated the criminal law was generally treated as an adult, it is contrary to the spirit of modern penology to impose upon juvenile offenders, whose need is reclamation and reform rather than punishment, the penalties intended for adults. As a result of a growing sentiment in that direction, in many jurisdictions, special laws have been enacted for the juvenile offender whereby an infant who has violated the criminal law is treated merely as a delinquent and not as a criminal.” 31 Corpus Juris, 1094.

Arrests may be made not only in bastardy proceedings but in other civil proceedings as well as in criminal proceedings. Considering the purpose of the Juvenile Act we are persuaded that Section 1659 in touching upon the arrest of juveniles under the age of eighteen years only affects arrests contemplated in criminal proceedings. That section accordingly imposes no limitations upon the jurisdiction otherwise conferred upon justices of the peace and courts of common pleas in proceedings in bastardy.

It is further urged that if bastardy is a civil action it could not have been prosecuted to judgment against the defendant in this case without the appointment of a guardian ad litem to protect his interests. This question has been considered by a number of courts in other jurisdictions. In Hinman v. Taylor, 2 Conn., 357, it was held that a proceeding in bastardy was a civil suit and could be instituted and maintained only by a guardian or pro chain ami of a minor complainant, and this case was approved in Coomes v. Knapp, 11 Vt., 543. In Hanna v. State, 60 Ala., 100, it was decided that a next friend need not appear for a minor complainant in view of the fact that the state was the plaintiff although the complainant was subject to a judgment for costs in case the action failed. This opinion was followed in Miller v. State, 110 Ala., 69, 20 So., 392. Of like import is Dehler v. State, ex rel. Bierck, 22 Ind. App., 385, 53 N. E., 850. In Conefy v. Holland, 175 Mass., 469, 56 N. E., 701, it was determined that as the proceeding in bastardy is an “anomalous one created and governed by statute,” and as the statute requires no next friend, the infant complainant can institute proceedings without one. It is quite likely that these several decisions turn upon local statutes, but in Kansas we find a case based upon a statute almost identical with Section 12110 of the General Code of Ohio. The Supreme Court of that state in State, ex rel. Bales, v. Baker, 65 Kan., 117, 69 P., 170, said: “It will be observed that the bastardy proceeding is wholly statutory, and in the statute we must find the solution of the questions raised by the state. As has frequently been held, the proceeding authorized by the statute is not strictly civil or criminal, but partakes somewhat of the nature of both. It has a procedure peculiar to itself, and, hence, the general provisions of the civil and criminal codes do not apply, except so far as they are made applicable by the statute itself. * * * No distinction is made in the statute between adults and minors, nor does it provide that a minor shall be represented by next friend or guardian.”

"We follow the doctrine of that case.

The section of our Code requiring the appointment of a guardian ad litem is 11252. This section was a part of the Code of Civil Procedure enacted in 1853. It was passed to provide a system of civil procedure for all suits at law and actions in chancery but did not undertake to extend its provisions to those special proceedings which created rights and provided the procedure therefor. Indeed, by Section 604 (51 Ohio Laws, 161) of that original Code there were enumerated a number of special proceedings, including bastardy, which were expressly excluded from the operation of the Code. 5 Ohio Jurisprudence, 544. This Section 604 is no longer carried in the General Code, as it was treated as obsolete and omitted from the revision of the statutes in 1878 (75 O. L., 835), but the rule remains that special proceedings that fully provide the machinery for carrying on the right of action thus created are exempt from the Code provisions. Now Section 12110, seeking not to punish, but to enforce the performance of a civil duty (Carter v. Krise, 9 Ohio St., 402), provides for the arrest of any person charged with being the father of an illegitimate child and the subsequent provisions provide for his trial. No provision is found in the chapter on bastardy or elsewhere for the appointment of a guardian ad litem to protect the interests of an infant defendant in that sort of proceeding, and none is therefore required.

There is no error in the record.

The judgment is affirmed.

Judgment affirmed.

Middleton and Blosseb, JJ., concur.  