
    Jane Gibney v. John Fitzsimmons.
    The father of a natural child acknowledged by him, ia liable for ^alimony for the support of the child at the suit of the mother. O. C. 227.
    It is not necessary that the time during which alimony should be paid for the support of a natural child should be stated in the judgment allowing the alimony. The time is fixed by law. C. C. 260.
    
      APPEAL from the Fifth District Court of New Orleans. Buchanan, J.
    
      M. M. Cohen, for plaintiff,
    contended: In this case plaintiff alleges, that defendant, under a promise of marriage, whch he never performed, became the father of her child, Eliza Jane Fitzsimmons, which was born on the 13th December, 1846; and plaintiff prays for such alimony for the support of said child as the age of said child and the pecuniary circumstances of said defendant may justify.
    After hearing evidence and argument, the judge of the Fifth District Court of New Orleans condemned defendant to pay alimony in the sum of ten dollars per month; and from this judgment defendant, after an ineffectual effort to obtain a new trial, appealed.
    1st. Defendant argued, that plaintiff did not sue as tutrix. To which plaintiff replies, that it was not neccessary. The relation of mother and child, and the alleged age of the child, showed that plaintiff sued for the use of the child; and the objection, that plaintiff did not sue as tutrix, is waived by defendant’s answer, and going to trial on the merits, and comes too late after judgment.
    Upon the trial, the paternity was fully established to the satisfaction of the court below, under article 226 of the Civil Code. There was judgment of the court to that effect, so far as it was necessary, because the defendant wa3 condemned to pay alimony, as such.
    The evidence showed tutorship by nature on plaintiff’s part. Defendant endeavored to prove that the child was christened under the name of Somers. To which plaintiff replies : 1st. That the identity was not establised. 2d. It may have been so christened by defendant’s agency, as a ruse and cloak. 3d. plaintiff was not present at the alleged christening, and had no agency therein. 4th. No John Somers is proven to exist, and in the argument of defendant’s counsel it was Patrick Somers.
    
    Defendant argued that his answers on the commission before Judge Bright, deny all knowledge as to paternity, and that it was necessary to prove by two credible witnesses that the defendant was the father. To which plaintiff replies, that the defendant’s denial of any knowledge of paternity answers itself, and disproves itself; as defendant must know if he is or is not the father of that child. Moreover, his paternity was established by the testimony of two credible witnesses.
    Defendant argued, that ten dollars per month was excessive alimony. But plaintiff proved on the trial, that it should have been $20 per month ; that defendant had a fine grocery store and was doing a flourishing business; had real estate unencumbered ; and that plaintiff had no means of support but her daily labor.
    As to defendant’s evasive answers to interrogatives, before Justice Bright, see 2 N. S. 55. 14 L. R. 186. 1 R. R. 31. 18 L. R. 59. C. P. 349. 4 L. R. 511.
    
      W. C. Budd, for defendant,
    contended: The petitioner charges defendant with her own seduction, aggravated by previous promise of marriage, and the subsequent birth of an illegitimate female child; the paternity of which she endeavors to fasten on defendant. This child she designates by the name of Eliza Jane Fitzsimmons; but from an untoward fate and the Rev. Father Monaghan, a Catholic Priest of this city, the infant received at the baptismal fount, the patronymic of Somers.
    
    Petitioner further charges, that a few months after the birth of said child, she was left direlict on the world by the said defendant, whose abandonment converted the damage done to her good fame into a total loss, &c. She claims -damages in this behalf, likewise alimony for the maintenance of her child; and farther, that she be recognised as its natural tutrix.
    The court a qua considering: 1st, that the paternity of the defendant had been made out; 2d, that no legal recognition of the child had been made by the mother and plaintiff, in conformity with article 221 of the C. C., decreed that said plaintiff should recover alimony at the rate of $10 per month from judicial demand.
    We would most respectfully suggest that there are serious objections, both legal and moral, to the ratification of this judgment, to wit: 1st. In this very suit she claims judgment recognising her as tutrix of her minor child; yet in this very suit she assumes to represent said minor and stand in judgment for her. The tutor alone is competent to represent a minor in judicial proceedings. C. P.108, 109. 2d. The judgment correctly refuses to recognise the capacity claimed by Jane Gibney; and yet through some strange oversight it allows a]}mony sued for in said representative capacity. 3d. The defendant denying the imputed paternity, a preliminary suit to establish the filiation was indispensable. Articles 257 and 258 C. C. are imperative on this point: “A judgment duly pronounced” is requisite in order that they (the natural children) may have a right to sue for alimony. 4th. This daughter of Jane Gibney was baptised by the name of Somers, as the daughter of John Somers. The law assigns to the certificate of baptism the same authority as to a notarial recognition, and puts it on the same footing of a judgment contradictorily rendered in cases of disputed paternity. Can this suit lie, predicated as it is, upon the assumed falsehood of this solemn instrument; and this too, without even making John Somers, the reputed father, a party to the investigation? 5th. The judgment decrees a monthly payment, which has a beginning but no end. Its registry would create a mortgage indefinite in amount, which could not be raised, because the judgment itself could not be satisfied. The record furnishes no clue to the terminus of defendant’s liability; and the omission ¡is fatal. 6th. If the judgment is indefinite, it but follows the prayer of the petition, á longo intervallo. In claiming alimony the plaintiff has omitted to designate any amount whatsoever — a looseness of practice which we believe has not yet received the sanction of this honorable court.
    The defendant, interrogated under oath as to his paternity, says: “He knows nothing about it.” This question he answers impulsively from the depth of his conviction, although he refused to respond to other interrogatories propounded at the same time, on the ground that the commissioner liad no authority to tender such interrogatories. Stephen Condon, a witness for plaintiff, in whose house she lived eight months, says, “as to her character, I had not much opinion of her. She appeai’ed to be a pretty hard case, and her latter end appeared to be as hard as her beginning. I often hoard her say • she would marry no papist for half New Orleans.” This womaff then, had strong religious prejudices, and y.et she suffered her child to be baptised by a Roman Catholic Priest, as the daughter of John Somers. How did this happen ? Who is John Somers ? This event occurred when the child was but three days old, and must have been known to the attendants and officers of the Charity Hospital. The plaintiff, upon the production of this extraordinary document, did not demand a continuance on the score of surprise, nor does her counsel attempt to account for its existence. And yet, from whom is light to come, if not from the plaintiff? But instead of satisfying the court on this point she prefers resting her case on extra judicial admissions of defendant, which are contradicted by his own conduct, as well as by his solemn declarations under oa1h. In estimating the value to be attached to said evidence the court will bear in mind, that the most important portion .of if was retailed to a commissioner in secret session; that the tone of the witnesses who testify to defendant’s admissions, shows them to be partisans of a very low class ; that it is not pretended that plaintiff and defendant lived in concubinage under the same roof; and that the very looseness of the connexion (if any) subsisting between the parties makes its abrupt and unexplained cessation, a circumstance of sinister import. Nor is it to be overlooked, that under article 228 C. C., the plaintiff might have offered her own affidavit in support of defendant's paternity. That she wilfully abstained from availing herself of this important privilege, the zeal and capacity of her counsel will not permit us to doubt. Must we not infer, that, however abandoned she may be, her soul recoiled from a revolting perjury, which must sooner or later be followed by discovery and condign punishment ? Must we not infer, that she preferred trusting her case to the surmise of the defendant? and when he declares that he knows nothing about it, we apprehend that the court will be very apt to adopt the same conclusion.
   The judgment of the court (King, J. absent) was pronounced by

Rost, J.

The plaintiff alleges, that she was seduced by the defendant under a promise of marriage, and had by him a daughter, which she is unable to support. She tenders proof of the paternity of the defendant, and prays that he be decreed to allow such alimony for the rearing and support of said child as her age and his pecuniaiy circumstances may justify. The answer is simply a general denial.

The evidence having satisfied the district judge that the defendant was the father of the plaintiff’s child, and that he was in good circumstances,.he allowed alimony at the rate of ten dollars per month from the judicial demand. The defendant appealed.

The exceptions taken to the action, in the brief of the defendant’s counsel, are made for the first time in this court, .and cannot be noticed. The defendant has waived them by his answer.

It is proved by witnesses, whose testimony is not impeached, that 'the defendant habitually acknowledged the child as his own, and called her so in conversation. His answer, when examined in open court, on the fact of paternity, that he did not know whether the child was his, eannot do away the effect of that evidence, under article 227 C. C. It is true that the girl was baptised as the child of one John Somers ; but this occurred three days after the birth, out of the presence of the mother, and, there is strong reasons to believe, without her knowledge. The existence of John Somers is not shown, and the certificate of baptism was in the possession of the defendant.

The appellant assigns, as an error, that the time during which the alimony is allowed is not mentioned in the judgment. This is as it should be. The time during which it is to be paid is fixed by law. C. C. 260.

Judgment affirmed, with costs.  