Laugenour v. Fogg

PARKER, J. pro tem.

The question presented here, while it may not be simple, is at least definite and clear-cut.

From the nature of the case, as it will disclose itself, a detailed statement of the facts wnuld have as its sole result the embalming in buckram of a story that would serve only to arise as future embarrassment to innocent and blameless persons unhappily drawn into the controversy. Both parties agree that there is for determination but one point of law upon which the entire controversy hinges and the proceeding becomes in reality one following a practice adopted in some courts, namely, a certification of the question involved.

In the instant case the appellant presents the question as follows: Does section 230 of the Civil Code contem

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plate, in order to effect the legitimation of a child, that the father must take the child into his wife’s home for reception there, with the wife’s consent, under circumstances wherein the father had separated and lived apart from the wife, and had continuously lived, and maintained a settled and fixed home with his illegitimate child and her mother, always acknowledging the child as his own for a period of seventeen years ?

The respondent presents the question, in slightly different form, as follows: Can a married man, the father of an illegitimate child, adopt such child under section 230 of the Civil Code by separating and living apart from his wife and living with the mother of said illegitimate child, and having said child live with them, and acknowledging the child as his own, without any consent having been given by the wife and without her even knowing of such illegitimacy?

To both of these questions may be added, concededly, the further statement that in both it is assumed to be understood, that there had been no divorce between the spouses.

The questions as respectively propounded could be narrowed down to the one simple query, as follows: Does section 230 of the Civil Code mean what it says or must it be construed as merely a moral precept intended for general guidance as inclination might determine?

Section 230 of the Civil Code reads as follows:

“The father of an illegitimate child, by publicly acknowledging it as his own, .receiving it as such,