
    BASTARDS.
    [Clarke (2nd.) Court of Appeals,
    January 5, 1918.]
    Kunkle, Allread and Ferneding, JJ.
    State ex rel. Mary Roden v. Edward N. Cregar.
    Married Woman Cannot Maintain Bastardy Proceedings.
    A proceeding in bastardy cannot be maintained by a woman married at the time of the birth of her child and at the time of filing the complaint to a man other than defendant.
    [Syllabus approved by the court.]
    
      T. 3. McCormick, for plaintiff in error.
    
      Stafford & Arthur, for defendant in error.
   KUNKLE, J.

This is a proceeding in bastardy which was originally brought before a justice of the peace under Sec. 12110 G. C.

This section provides:

“When an unmarried woman, who has been delivered of or is pregnant with a bastard child, makes a complaint in writing, under oath, before a justice of the peace, charging a person with being the father of such child, he thereupon shall issue his warrant, directed to any sheriff or constable of the state, commanding him to pursue and arrest such accused person in any county therein, and bring him forthwith before such justice to answer such complaint. ’ ’

Without undertaking to quote in detail from the record, it is sufficient to say that the same discloses that the child in question was begotten September 26, 1916; that Mary Roden, the complainant, was married February 12, 1917; that the child in question was bom June 13, 1917; that the complainant was, at the time of the birth of the child; at the time the proceeding was instituted before the justice of the peace, and still is, a married woman, being the wife of a man other than defendant in error.

Can this proceeding, under such a state of facts be maintained? . We have carefully considered the briefs which have been filed by counsel. Without attempting to discuss the authorities so cited in detail, we are of opinion that under the reading of Sec. 12110 G. C., and under the Ohio decisions, such as Haworth v. Gill, 30 Ohio St. 627; Miller v. Anderson, 43 Ohio St. 478 [3 N. E. 605; 54 Am. Rep. 823], etc., this action can not be maintained.

We are also of opinion that the case cited by counsel for plaintiff in error in the case of Parker v. Nothomb, 65 Neb. 315 [93 N. W. 851; 60 L. R. A. 699], is clearly distinguishable from the case at bar.

A consideration of the Ohio cases, in our opinion, requires a holding to the effect that the action can not be maintained.

The judgment of the lower court Avill therefore be affirmed.

Allread and Ferneding, JJ., concur.  