Fernandez v. Aburrea

KERRIGAN, J.

This is an action brought by the plaintiff, under the provisions of section 196a of the Civil Code, against the defendant, the putative father, for the support of her minor illegitimate child.

The trial resulted in a judgment in favor of the plaintiff for the sum of $115, for the support of the child from the date of the filing of the action until the entry of judgment, and for the further sum of $15 per month thereafter until the further order of the court. The defendant appeals.

[132]

The section of the Civil Code in question reads as follows : “The father as well as the mother of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligations may be maintained in behalf of a minor illegitimate child by his mother or guardian, and in such action the court shall have power to order and enforce performance thereof, the same as under sections 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.”

The action was commenced more than three years after the enactment of this section, and for this reason the defendant claims that it is barred by the provisions of section 338 of the Code of Civil Procedure.

[1]

The obligation of a father to support his child, whether legitimate or illegitimate, is a continuing duty, against which the statute of limitations will not run during the time that the child needs such care and support.

(Denham

v.

Watson,

24 Neb. 779, [40 N. W. 308].)

Prior to the enactment of said section 196a the plaintiff and defendant entered into an agreement, by the terms of which the defendant claims that he was released of all obligations to the plaintiff and to their child. It provides that in consideration of the sum of $325 the plaintiff discharges the defendant “of all obligations which he may have toward said Maria Ardanaz for her pregnancy and its consequences.” Upon this purported release the defendant contends that to enforce section 196a of the Civil Code against him would be in violation of section 16, article I, of the constitution of the state, prohibiting the enactment of laws impairing the obligation of contracts.