WHITE v. STATE

WHITE v. STATE
1935 OK 1212
53 P.2d 675
175 Okla. 522
Case Number: 25939
Decided: 12/17/1935
Supreme Court of Oklahoma

WHITE
v.
STATE.

Syllabus

¶0 1. BASTARDS--Bastardy Proceedings -- When Bar of Limitations Properly Urged by Objection to Introduction of Evidence.
Where a petition or complaint in bastardy proceedings shows on its face that the cause of action is barred by the statute of limitation, an objection to the introduction of any evidence is sufficient to raise the question.
2. SAME--Cause of Action Barred Unless Proceedings Begun Within Three Years After Birth of Child.
A cause of action arising under the provisions of section 1718, O. S. 1931 (section 8059, C. O. S. 1921), is a liability created by statute and is barred by the provisions of section 101, O. S. 1931 (section 185, C. O. S. 1921), unless commenced within three years after birth of the child.

Appeal from County Court, Osage County; L. F. Roberts, Judge.

Bastardy proceedings by the State against Abraham White. From judgment against defendant, he appeals. Reversed.

John W. Tillman, Fred A. Tillman, and W. J. Mahan, for plaintiff in error.
S. T. Carman, C. K. Templeton, and J. C. Cornett, for defendant in error.

WELCH, J.

¶1 The governing facts are quite similar to the facts in Johnson v. State, 173 Okla. 508, 49 P.2d 141, and the rules of law announced in that decision are controlling in this case. Here the trial court erred in overruling defendant's objection to the introduction of any evidence. This for the reason that the complaint showed by positive averment that the child was born much more than three years before the action was commenced, and there was no effort to plead facts to toll the statute of limitations, or to take the cause out of the operation of the statute.

¶2 If the proper ruling had been made on defendant's objection to the introduction of evidence, an amended complaint might have been proper, or there might have been some request to amend the complaint, but the cause of action as now alleged is barred by the statute of limitations.

¶3 The judgment is reversed and the cause remanded, with directions to the trial court to sustain defendant's contentions that the cause of action as now alleged is so barred, without prejudice, however, to the right to make application to amend.