Brown v. Marrelli

¶1(concurring, but stating reservations) :

¶2I concur with the affirmance of the judgment of the trial court on the ground that under the particular facts of this case the prior bastardy proceeding can properly be considered res adjudicata. The plaintiff, who was the prosecutrix and real party in interest there, is here attempting to pursue the other alternative of her remedy. Also supporting the judgment, and even more important to me, is the fact that this proceeding is grounded upon the contention that the prior one was not properly conducted and that she did not have adequate counsel, which really amounts to an attempted collateral attack upon the judgment.

¶3But I do not desire to be understood as agreeing, and I trust the main opinion will not be so understood, that there may not be some circumstances in which a public agency, or other person, who provides or has provided sustenance for a necessitous child, would not be so prevented by res adjudica-ta from suing a putative father (suppose, for example, the evidence to be ever so strong, including admissions of paternity) because there had been a prior bastardy proceeding. That proceeding, brought by the State, necessarily involved other parties. Whereas, as a general rule, the doctrine of res adjudicata applies only when the parties, and the issues, involving the same cause of action, are the same as in the prior adjudication.1

¶4Chapter 158, S.L.U.l965, creates an entirely new and separate cause of action for the support of a child, solely for his benefit, and to be enforced on his behalf. Section 1 of that act (78-45a-l, U.C.A.1953, Pocket Part) provides:

Obligations of the father. — The father of a child which is . . . born out of wedlock is liable to the same extent as the father of a child born in wedlock. [for all reasonable expenses, etc.]

¶5Section 2 of the act (78--45a-2), provides that it may be enforced by the mother, the *232child, or by the public authority, or by other persons or agencies to the extent that they bear necessary expenses on his behalf. Neither the child, who was not born at the time, nor the third party, who later furnished his support, would have been involved in the bastardy proceeding; and their rights should not be deemed concluded thereby.

¶6I appreciate that the possibility of further litigation with other parties may present difficulties for the defendant. But so do the life and necessities of the child. I have made these observations because I think this decision should be restricted to its particular facts; and that judgment should be reserved as to other possible circumstances.