Appeal from the Circuit Court of Cook County, Criminal
Division; the Hon. THOMAS H. FITZGERALD, Judge, presiding. Orders
denying petition and motion to vacate judgment for plaintiff
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied February 9, 1967.
This is an appeal from an order denying both a petition and a motion to vacate a judgment for the plaintiff finding the defendant to be the father of a male child born out of wedlock on January 3, 1959. The petition and motion were filed some five years after the judgment. The judgment was entered under the Paternity Act (Ill Rev Stats 1959, c 106 3/4, pars 51 to 66).
On October 30, 1959, the defendant appeared in court and was called upon to answer the complaint of Geraldine Covington charging him with fathering a child delivered by her out of wedlock. The defendant in open court admitted paternity. The court, sitting without a jury, held a hearing and there was a finding that the defendant was the father of the child. The record also discloses that the court at that time heard evidence upon the requirements of said child for its support, maintenance, education and welfare, and ordered the defendant to pay, to the Clerk of the court the sum of $12 weekly commencing November 7, 1959.
On October 26, 1964, the defendant filed a petition to vacate the judgment which had been entered on October 30, 1959. The petition to vacate the judgment and subsequent motion to sustain the petition were denied in the trial court.
The defendant contends that the court erred in treating this case as criminal in nature instead of civil by accepting an oral plea of guilty; in failing to issue a warrant for the apprehension of defendant; in failing to require a signed written acknowledgment of paternity; and in entering judgment the day of the preliminary hearing instead of setting a later date for a trial on the merits.
Section 5 of the Paternity Act (Ill Rev Stats 1959, c 106 3/4, par 55) provides in part as follows:
"Upon the filing of a complaint as provided in Section 4, . . . the Court shall thereupon issue a warrant for the apprehension of the defendant, . . . . Upon the appearance of the accused and in his presence, the Court shall examine the woman, upon oath or affirmation, on the charge that he is the father of the child. . . . If the accused admits the charge, or waives examination of the complainant, or if after the accused has controverted the charge the court, upon examination, determines that sufficient cause appears, it shall bind the accused person, in bond, . . . to appear in court on a designated return day occurring within 30 days from the date of the bond, . . . to answer the charge and to abide the final order or judgment. . . ."
Section 9 of the Paternity Act reads in part as follows:
"If the defendant has in writing acknowledged that he is the father of the child, either at the preliminary hearing provided in Section 5, or at the subsequent trial of the issue, . . . or if on the trial of the issue the court or jury, as the case may be, finds that he is the father, the court shall enter judgment to that effect. . . ."
As to the first point urged by the defendant, namely, that the court erred in treating this case as criminal in nature instead of civil, the defendant argues that the plea of guilty accepted by the court was improper because cases involving the Paternity Act are civil cases and not criminal. Prior to 1957 cases of this kind were covered by the act known as the Bastardy Act. In 1957 the legislature saw fit to give this chapter a more imposing and dignified title and named it the Paternity Act. Cases construing the procedures in the Bastardy Act are applicable to the statute now entitled Paternity Act.
In People v. Woodside, 72 Ill. 407, the court decided that in a bastardy case where a plea of not guilty was filed it was sufficient, though not as formal as it might be, and the issue was thus made.
[2-4] We think there is no substantial point raised by the defendant's first contention merely because the defendant pleaded guilty to the charge rather than to file a formal answer to the charge against him. The Civil Practice Act is applicable to the Paternity Act, and while it would have been more appropriate for the defendant to file an answer or other pleading, he cannot now complain of his failure to provide a more formal issue. Cornmesser v. Laken, 43 Ill. App.2d 324, 193 N.E.2d 337; People v. Humbracht, 215 ...