State ex rel. Berge v. Patterson

Citations

• 18 S.D. 251
• 100 N.W. 162
• 1904 S.D. LEXIS 47

Syllabus

<p>1. An action under Rev. Code Civ. Proc. § 807, by the mother of a bastard child against the father to compel him to support the child, is an action on a liability created by statute, other than a penalty or forfeiture, and is not barred by limitations in two years, but, under section 60, may be brought at any time within six years.</p> <p>2. The defense of limitations cannot be raised by demurrer, but, under the express provisions of Rev. Code Civ. Proc. ? 39, must be taken by answer.</p> <p>3. Under Rev. Code Civ. Proc. § 807, giving the mother ot a bastard child an action against the putative father to compel him to provide for the child’s support, the father of a bastard begotten in this state is liable in the action for its support, though the child was born outside the state.</p> <p>4. Where, in bastardy proceedings, defendant introduced a photograph of the child, it was not error to allow opposing counsel to call attention to the child itself, which was present in court without objection.</p> <p>5. Rev. Code Civ. Proc. § 265, provides that, when the jury have agreed, they must be conducted into court, their names called by the clerk, and verdict rendered by the foreman; that, if any juror disagrees, they must be sent out again,but, if no disagreement be expressed, and neither party requires the jury to be polled, the verdict is complete; and that either party may require the jury tobe polled, which is done by the court or clerk asking each juror if it is his verdict. When a jury returned with a verdict for plaintiff, the judge and attorneys for both parties were present, but the clerk was not. The verdict was read by the court, and the jury asked by him if it was their verdict; neither party asking that the jury bo polled, and no objection being made that the names of the jurors were not called, and that the verdict was received and read by the court instead of the clerk, until the next morning. Held, that as defendant was not prejudiced by the fact that th