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Kaufman v. Smathers

Decided: May 15, 1933.

SIDNEY KAUFMAN, BY HIS NEXT FRIEND, SOLOMON KAUFMAN, APPELLANT,
v.
WILLIAM H. SMATHERS, JUDGE, IN BASTARDY PROCEEDINGS ON THE COMPLAINT OF MARGARET CARR, RESPONDENT



On appeal from the Supreme Court, whose per curiam opinion is printed in 10 N.J. Mis. R. 671.

For the respondent Margaret Carr, Samuel Levinson.

For the appellant, William B. Hunter, Jr.

Kays

The opinion of the court was delivered by

KAYS, J. This is an appeal from a judgment of the Supreme Court dismissing a writ of certiorari brought to review

the action of the Atlantic County Juvenile Court. The action in this case was brought by Margaret Carr, the mother of a bastard child, against Sidney Kaufman who, it was alleged was, and found by the jury to be, the father of said child.

The first point argued for reversal is that the Atlantic County Juvenile Court was not in existence at the time the action was brought for the reason that said court was abolished by an act entitled "An act to establish Juvenile and Domestic Relations Courts," and that, therefore, the action should have been entitled in the Juvenile and Domestic Relations Court of Atlantic county. The Supreme Court held that the inadvertent omission of part of the name of the court could not be seized upon to defeat a judgment otherwise beyond attack if the jurisdictional facts can be gathered from the case, and that since the prosecutor of the writ recognized the jurisdiction and entered into a bond that this omission of part of the title of the court was not fatal and did not render the order void. The case was tried before the judge and a jury. We might agree with the Supreme Court in this respect were it not for the fact that the proceedings were brought by Margaret Carr individually. It appears from the record of the case that a complaint was made by Margaret Carr to the judge of the Atlantic County Juvenile Court which set forth that the said Margaret Carr was a single woman, was pregnant with child which was likely to become a charge upon the city and requested the court to make inquiry into the facts and circumstances of the case and make such order of filiation as the statute should require. Margaret Carr was thereupon examined before the said judge and stated that the said child was likely to be born a bastard and likely to become chargeable to the city of Atlantic City and that Sidney Kaufman, of Atlantic City, was the father of said child. The next record appears to be a record of the bastardy action or proceedings before the court and is entitled "Atlantic County Common Pleas Court, May term, 1930," which sets forth the date and place of the trial, the names of the witnesses and the direction of the court to the jury. The next record is an order for support and appears to be entitled, [111 NJL Page 54] "Juvenile Court of the County of Atlantic, New Jersey, the State of New Jersey v. Sidney Kaufman." This order sets forth that Sidney Kaufman was adjudged by a jury to be the father of the bastard child and directs Kaufman to pay to the chief probation officer of Atlantic county, for the support of said bastard child, the sum of $6 weekly, and also $75 for confinement expenses of the mother. It further provides that the said Kaufman enter into a bond to Henry S. Scull, chief probation officer of Atlantic county in the sum of $1,000 with proper security for the faithful performance of the conditions of the order and in default thereof that he be committed to the county jail. Among other things the bond provides that the said Kaufman should faithfully obey the order and such other orders as may be made in case an appeal be taken. A rule to show cause was allowed and argued before Judge Smathers which was dismissed. The Supreme Court held that under Pamph. L. 1929, p. 274, which was the act establishing Juvenile and Domestic Relations Courts, this proceeding might be instituted by complaint or petition and verified by the person making the same and, therefore, it was not necessary that the action be brought in the name of the overseer of the poor and that because this point was not raised before judgment was entered in the Juvenile and Domestic Relations Court, and was raised for the first time on the return of the rule to show cause it was not available before the Supreme Court. We are of the opinion that the Supreme Court erred in regard to this point. Assuming that bastardy proceedings were cognizable before the Juvenile and Domestic Relations Court of Atlantic county the action in that court is founded upon an act entitled "An act for the maintenance of bastard children (Revision of 1898)." 1 Comp. Stat. 1910, p. 184. This act provides among other things that if any woman shall be delivered of a bastard child, which shall be chargeable or likely to become chargeable to any township; or declares herself to be pregnant of a child likely to be born a bastard, and to become chargeable to any township, any overseer of the poor of the township where such woman may be, or of the township wherein the legal settlement of such woman

may be, may apply to a magistrate of the same county, &c., * * * to make inquiry into the facts and circumstances of the case. The act then provides for the examination and proceedings before the magistrate and a jury, provides that if the father is found guilty the magistrate shall make an order of filiation in which he shall specify the sum of money to be paid and that the father shall enter into a bond to the State of New Jersey in such sum as the magistrate shall direct with proper sureties and will indemnify each and every of the townships of this state which may have incurred any costs or expense for the support of such bastard, or child likely to be born a bastard, or its mother during her confinement or for any proceedings arising therefrom. The act further provides that the penalty of every such bond which shall be taken for the appearance of any such reputed father or for indemnifying the townships, shall in all cases be such a sum as shall insure a full indemnity to every township in the state for the expense that has been or which may be incurred by reason of supporting such bastard and its mother during her confinement and the cost of all proceedings connected therewith. The term "township" in the act is extended to include cities, &c. It seems from the provisions of this act that its very object is to protect the municipality from expense of maintaining bastard children and that this is the only reason for the existence of the act. This being so the next question is whether the failure to bring the action in the name of the overseer of the poor invalidated the proceedings. It is contended on the part of the respondent that because the question of jurisdiction was not raised before judgment, that it could not be entertained by the Supreme Court nor here on appeal. The question before the

Supreme Court and before us is one which goes to the very subject-matter of the suit. Such jurisdiction cannot be conferred by consent or acquiescence. A judgment which is pronounced by a court having no authority to determine the matters at issue is void and may be raised on the return of the writ of certiorari even though it was not raised at the trial. It is a question whether or not the Juvenile Court was vested with power to take cognizance

of the cause and is, therefore, a question of jurisdiction over the subject-matter of the action. This cannot be conferred by consent nor can the right to object to the want of such jurisdiction be lost by acquiescence of the parties. The Supreme Court held in effect in the ...


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