Brown v. Marrelli

TUCKETT, Justice:

On April 13, 1973, the plaintiff commenced these proceedings in the district court pursuant to the provisions of Title 78, Chapter 45a, U.C.A.1953, as amended, which is known as the “Uniform Act On Paternity.” The plaintiff claims that the defendant is the father of her child born out of wedlock and seeks an order of the court compelling the defendant to pay the hospital and medical expenses necessitated by the birth of the child and a monthly sum for the support of the child.

Prior to these proceedings the plaintiff here was the complainant in bastardy proceedings filed by the prosecuting attorney pursuant to the provisions of Chapter 60, Title 77, U.C.A.1953. In those proceedings the defendant here was held to answer the charge and a trial was had in the district court, which concluded on December 11, 1972, and the defendant was found not guilty of being the father of the plaintiff’s child. The defendant moved the court to dismiss these proceedings on the grounds that the verdict in the prior case was res judicata as to the parties and privies and *231 binding upon the plaintiff. The court granted the defendant’s motion and from that ruling the plaintiff appeals.

It is the practice in this jurisdiction to try bastardy cases as civil matters rather than criminal even though the cases are brought in the name of the State and the public prosecutor is charged with handling those matters. 1 In those proceedings the parents of Tracy Brown, the plaintiff herein, employed special counsel to assist the prosecutor. The record indicates that the plaintiff was advised that she might proceed under the bastardy statute, or that she could file civil proceedings under the Uniform Act On Paternity. Prior decisions of this court have held that the bastardy act and the paternity act are alternative remedies. 2 The plaintiff having elected to proceed under the bastardy statute which culminated in finding that the defendant was not the father of her child precludes her from seeking in this proceeding to have that issue again determined. We conclude that the ruling of the trial court is correct.

The defendant urges this court to dispose of this appeal on procedural grounds in that the plaintiff and appellant here failed to comply with Rules 73 and 75, Utah Rules of Civil Procedure, in that she failed to take the steps necessary to comply with those rules in perfecting this appeal and unnecessarily delayed the perfection of the appeal to this court. There is merit to the respondent’s position, but the court having disposed of the matter on its merits we do not deal with this assignment.

CALLISTER, C. J., and HENRIOD and ELLETT, JJ., concur.

. State v. Reese, 43 Utah 447 , 135 P. 270 .

. State v. Judd, 27 Utah 2d 79 , 493 P.2d 604 ; State v. Abram, 27 Utah 2d 266 , 495 P.2d 313 .