
    The State, ex rel. Gill, Appellee, v. Volz, Appellant.
    (No. 4139
    Decided October 5, 1948.)
    
      
      Mr. Gale Li. King, for appellee.
    
      Mr. Clarence M. Addison, for appellant.
   Hornbeck, J.

This appeal on questions of law is from a judgment fixing payment for support of a child, maintenance and necessary expenses of the mother of the child caused by her pregnancy and parturition. The judgment was made following a verdict of a: jury, finding the defendant guilty on a complaint that he was the father of a bastard child born to Joan Ruth Gill.

Chronologically, the material proceedings occurred as follows: Complaint filed on June 28, 1946; verdict of the jury on September 29, 1947; motion for new trial on October 1, 1947; judgment from which the appeal is prosecuted on December 19, 1947. Six errors are assigned, three of which are pressed in the brief of the defendant, appellant herein, and in oral argument. These three are :

(1) The court erred in accepting a verdict of less than 12 jurors.

(2) The court erred in not entering any judgment after the return of the verdict of the jury, adjudging the defendant to be the father of the bastard child.

(3) The court erred in entering a money judgment for the support of the bastard child from date of its birth to the date of the trial, and not entering any judgment at all against, the defendant for the reason that he had not been adjudged the father of the bastard child.

The first question, namely, the invalidity of the verdict signed by less than 12 members of the jury was passed on by the trial judge on a motion for new trial filed after the verdict and before any written entry carrying the verdict into formal adjudication. If defendant’s contention as to the second assignment of error, namely, that there must be an adjudication on the verdict of guilty, is well made, then the motion for new trial directed to the verdict of the jury was untimely filed and any pronouncement thereunder is without any formal effect as an adjudication. Section 11578, General Code, which is controlling of the matter, requires that the motion for new trial be made within ten days after the journal entry or final order, judgment or decree has been approved by the court in writing and filed with the clérk for journalization. If the proceeding is a civil action, none of the questions sought to be raised by the motion for new' trial could be properly presented because no judgment had been entered on the verdict. Section 11576-1, General Code.

However, counsel and the court, apparently by common consent, gave consideration to the motion for new' trial one of the grounds of which was the question whether a bastardy proceeding was such a civil action as would support a verdict returned by nine or more of the jurors.

We have considered and given attention to the memorandum opinion of Judge Leach, who passed on the first motion for new trial, and are in accord with the conclusion which he has reached and upon the authority, in the main, of the cases which be has, cited, namely, Kline v. State, ex rel. St. Clair, 20 Ohio App., 191, 151 N. E., 802; Schneider v. State, ex rel. Shorf, 33 Ohio App., 125, 168 N. E., 568; Reams v. State, ex rel. Favors, 53 Ohio App., 19, 4 N. E. (2d), 151; State, ex rel. Clutts, v. Dolan, 20 N. P. (N. S.), 478, 28 O. D., 353; Durst v. Griffith, 43 Ohio App., 44, 182 N. E., 519; State, ex rel. Pennington, v. Barger, 74 Ohio App., 58, 57 N. E. (2d), 815.

No one of those cases is decided by the Supreme Court but they are from appellate courts and nisi prius courts of eminence and there is such unanimity of opinion and judgment as to be most compelling on this court, especially as there is no case to the contrary to which we have been cited or of which we have any knowledge. Finally, we heretofore decided the question in State, ex rel. Merrill, v. Moore, 84 Ohio App., 49, 52 Ohio Law Abs., 301, 302, 82 N. E. (2d), 323, and are of opinion that the judgment is correct. An early case which went to the Supreme Court is that of Grieve v. Freytag, 2 W. L. B., 93, 7 Dec. Rep., 304, which was reviewed in 31 Ohio St., 147, and the judgment reversed. In that case the trial court had expressly held that bastardy was a civil proceeding. Whether this was urged as error in the Supreme Court does not appear in the report but it was not assigned as a ground for the reversal.

The second error assigned is that the court erred in not entering any judgment upon the verdict of the jury. We are constrained to hold that this assignment is well made. It is more vital that there be a judgment in view of the fact that we hold that the action here is civil. It is almost a truism to say that until an order is entered upon a verdict or finding there is no judgment of the court. A reading of the controlling statute compels the conclusion that an adjudication on the verdict is mandatory. Section 12123, General Code, provides:

“If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the illegitimate child if said child is alive and the court shall thereupon adjudge that be pay to the complainant such sum as the court may find to be necessary, * * (Emphasis ours.)

It is manifest that it is a requisite that there be a formal adjudication that the accused is the reputed father of the illegitimate child and this is a prerequisite of the further adjudication as to the payment of support, maintenance, etc. Devinney v. State, Wright’s, 564.

The third error assigned is in the entering of a money judgment for the support of the bastard child from the date of its birth to the date of the trial.

The child was born on August 21, 1946, trial was had, beginning on September 26, 1947, and support and maintenance order was made on December 19, 1947. So that, between the date of the birth and the date of the support order, some 16 months elapsed. It is the claim of defendant that the controlling statute, Section 12123, General Code, does not authorize an award for support and maintenance of the child for any period of time prior to verdict.

The pertinent parts of Section 12123, General Code, are:

“If, in person or by counsel, the accused confesses in court that the accusation is true or, if the jury find him guilty, he shall be adjudged the reputed father of the illegitimate child if said child is alive, and the court shall thereupon adjudge that he pay to the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expenses, caused by pregnancy and childbirth together with costs of prosecution, and a reasonable weekly sum to be paid complainant for support and maintenance of said child up to eighteen years of age. In the event said child is not born alive, or is not living at the time of said plea or finding of guilty, the court shall order the accused to pay the complainant such sum as the court may find to be necessary for her support, maintenance and necessary expense caused by pregnancy, including therein a reasonable amount for maintenance of said child until its death, and its funeral expenses. * *

Counsel for both parties cite State, ex rel. Beebe, v. Cowley, 116 Ohio St., 377, 156 N. E., 214, and State, ex rel. Griffin, v. Zimmerman, 67 Ohio App., 272, 36 N. E. (2d), 808, and defendant relies on this latter case.

When the Cowley case was decided, Section 12123, General Code, was plain in its purpose to restrict the judgment to support maintenance and expense money caused by pregnancy and childbirth for the complainant. only. No provision whatever was made or intended to be made for the support or maintenance of the child.

Manifestly, the basic intent of Section 12123, General Code, was changed when it was amended and reenacted in its present form. As the section now reads, one of its dominant purposes is to provide support and maintenance for the child up to 18 years of age in’ the bastardy judgment and this obligation is placed upon the putative father. Is it probable the Legislature intended that the father should be liable fqr such obligation only after adjudication? We believe that such a holding kills the central purpose of the section as amended. As Judge Crow said in the dissenting opinion in the Zimmerman ease, the words “weekly sum” as used in the section, fixing the time when the support, of a living child shall begin, presents the only ambiguous feature of the statute.

The provision for maintenance of the child, if not born alive or not living at the time of the adjudication, that the court shall fix a reasonable sum for maintenance of the child until its death, is consistent with the construction that in all parts of the section it is intended (hat the obligation upon the father for the support and maintenance of the child shall begin at birth and shall continue until 18 years of age or death, if it intervenes sooner, and in either instance this shall be recognized in the money order made by the court. The provision for reasonable “weekly sum” should not, in our judgment, prevent the application of the manifest purpose of the section. The trial court should make the provision for the child on the basis of a weekly sum from birth, which amount should be computed to the date of the support order and thereafter until 18 years of age.

The bastardy statutes have throughout the years been shaped largely with the purpose of making the most satisfactory enactment to protect both the mother and the child. Prior to the 1923 amendment to Section 12123, General Code, which amendment was under consideration in the Cowley case when the accused was adjudged the putative father, the court fixed a lump sum which the father was required to pay to the mother for her support and the support and maintenance of the child. Because of the inadequacy of these awards or the improvidence or necessity of the mother, these sums were soon dissipated and thereafter there was no remedy afforded whereby society could be protected against the obligation of maintaining the child if the mother was unable to do so.

In Creisar v. State, 97 Ohio St., 16, 119 N. E., 128, it was held that there could be no prosecution against the father of an illegitimate minor child under 18 years of age for failing to care for, support and maintain such minor child. The section, as amended in 1923, and which the court had under consideration in the Cowley case, took away any authority of the court to make a money award for the support and maintenance of the child but assured to the state the right to prosecute the father for nonsupport. The present section not only assures money award for the support and maintenance of the child bnt also retains the provision that snch award is no bar to the prosecution of the accused for failure to support his illegitimate child under the applicable provision of any statute. The whole trend of the Legislation is to lend the assistance of the law to the enforcement against the father of his obligation to support and maintain his child and it is not probable, and to us it seems a strained construction of the statute to hold, that it was intended this obligation should not begin from the date of the birth of the child.

There is conflict between our conclusion and the judgment reached in the Zimmerman ease and we will, if required, make the necessary certificate of conflict to the Supreme Court.

Since this opinion was written, the case of Willis v. Wilson, 83 Ohio App., 311, 80 N. E. (2d), 175, decided by the Court of Appeals for Lawrence county, comes to our attention, wherein Section 12123, General Code, is construed as we have interpreted it.

We have considered the other errors assigned and do not find them well made. The judgment will be reversed.

Plaintiff has filed a motion for an order of diminution of the record and tenders an entry which we are requested to direct the trial judge to enter. The motion was urged only in the event that we decided the judgment on the verdict should adjudge the defendant to be the putative father of the child. Before the order of this court on this appeal is journalized we will dispose of the motion and give counsel for the defendant five days to express his written opinion as to the right of the plaintiff to have the motion sustained.

Judgment reversed.

Wiseman, P. J., and Miller, J., concur.  