Wilson v. Wilson. Among the authorities discussed by Judge Atherton in the decision above referred to is the case reported in Tioga Co. v. South Creek (Tp.) 75 Pa. St. 453, in which the following language is used: "That the parents should be permitted to bastardize the child is a proposition which shocks our sense of right and decency and hence the rule of law forbids it." Further mention is also made by Judge Atherton of the following rule, viz: "This doctrine is recognized in Parker v. Way, 15 N. H. 45; Davis v. Houston, 2 Yeates (Pa.) 289; Page v. Dennison, 1 Grants Cases 377; S. C., 29 Pa. St. 420 in which case the court in addition hold that: 'Whether the child is begotten in or out of wedlock, if marriage precedes the birth, the presumption of paternity is the same, and it can only be bastardized by proof of non access." There is also discussed in this decision the case of State v. Romaine, 58 Iowa 46, 48 [11 N. W. 721], wherein the rule is announced that: "If a woman be pregnant at the time of the marriage and if pregnancy be known to the husband, he should be conclusively presumed to be the father." Reference is also made therein to the case of State v. Herman, 35 N. C. (13 Ired.) 502, wherein the Supreme Court of North Carolina holds, that: "A child born in wedlock, though born within a month or day after marriage, is legitimate by presumption of law and where the mother was visably pregnant at the marriage it is a presumption Juris et de jure that the child was the offspring of the husband." Without further citing authorities, we think the rules above announced are well established. Under the common law, the child was considered as being in legal existence and capable of inheriting as a legitimate child from the date of the marriage between the natural father and mother, irrespective of the shortness of the time of the birth of the child after such marriage. If the unborn child is legitimatized by the act of marriage, Greene County Appeals. then in our opinion the child cannot thereafter be bastardized nor rendered illegitimate by any subsequent act of either of its parents. It is in effect conceded by counsel for defendants in error that if the decree for divorce between the father and mother of this child had been withheld until after the birth of the said child, that the child would then be legitimate as it would have been born during actual wedlock. Under the statutes of our state, as well as at common law, we are of opinion that a decree for divorce between the parties does not effect the status of children. We think this rule would include children en ventre as well as those actually born. It appears from the record that the decree for the divorce in question does not undertake to bastardize the unborn child, but recognizes it as a feature of the marriage and fixes its custody. The law favors the legitimacy of children and it would be harsh rule which would permit a decree for divorce between the parents to so operate as to bastardize an unborn child which would be considered legitimate had the entry of divorce been withheld a day, a week, or for any period of time after the birth of the child. We think a holding to the effect that a decree for divorce can operate to change the status of an unborn child is contrary to the humane policy of the law. We have considered this case as one arising under the Ohio law for the reason that the law of Indiana, to which reference is made, is not plead nor proven, and the presumption is that the law of the forum controls the rights of the parties. Erie Ry. v. Welsh, 89 Ohio St. 81 [105 N. E. 189]; Coffinberry v. Blakeslee, 38 O. C. C. 462 (22 N. S. 34); Wettstein v. Bank, 38 O. C. C. 472, 475 (20 N. S. 201, 204). Upon a careful consideration of the entire record and the authorities cited, we are forced to the conclusion that the judgment of the trial court is contrary to the evidence. Such judgment will therefore be reversed and the cause remanded for further proceedings. Judgment reversed. Allread and Ferneding, JJ., concur. Collard v. Collard. COURTS-DIVORCE AND ALIMONY-ERROR. [Hamilton (1st) Court of Appeals, June 14, 1916.] Jones, Jones and Gorman, JJ. CARRIE E. COLLARD V. MARTIN T. COLLARD. Findings of Fact by Trial Court as to Decree of Alimony Rendered by Court in Sister State Conclusive on Review In Absence of Bill of Exceptions. The law of another state must be proved as a fact and made part of the record and, in the absence of a bill of exceptions, a finding of facts by the trial court is conclusive on review. Hence, a trial court having found that a court of another state having given judgment for alimony payable in monthly installments, that judgment is as to installments already past due "subject to modification, alteration and change, and that said amount al ready due was and is at all times under the control of the chancellor making the same," this court is bound by such find. ing. ERROR. Harper, Allen & Curts, David Lorbach and Leonard Garver, Jr., for plaintiff in error. John Nichols and Matt. Herold, for defendant in error. JONES (O. B. ), J. The action in the court below was to recover a judgment for arrearages due in monthly payments of alimony allowed by a judgment of the circuit court of Campbell county, Kentucky. The defense made in the answer was that the alimony was payable in installments, and that under the law of the state of Kentucky all judgments for alimony are subject to modification and change by the court thereof making the same and that said judgment would not support an action as on a final judgment for a fixed sum, in this state, and said judgment is subject to modification by the courts of Kentucky, and is not a final judgment for a fixed sum. These allegations were denied by reply; a jury was waived; and the cause was tried to the court, which, on request of the parties, made a separate finding of its conclusions of fact and conclusions of law. No bill of exceptions was taken. The conclusion of facts so found by the court is as follows: Hamilton County Appeals. "That the plaintiff by the consideration of the Campbell circuit court of the county of Campbell and state of Kentucky, on the 18th day of May, A. D. 1905, recovered a judgment for alimony against the defendant herein, payable in monthly installments of fifty ($50) dollars each, on the first day of each month after the making of said order; that at the time of the filing of this action, the defendant had failed to pay said monthly installments of alimony until the payments then in arrears amounted to the sum of $1,200, and that up to the time of the filing of the petition herein there has been no modification, alteration or change in the judgment rendered by the circuit court of the county of Campbell and state of Kentucky. "The court further finds as a matter of fact that at the time, and ever since the said decree was rendered against the defendant in the Campbell circuit court of the county of Campbell and state of Kentucky for said monthly payments of alimony, that said decree as to installments of alimony already due, under the decree, are subject to modification, alteration and change, and that said amount already due was, and is, at all times under the control of the chancellor making the same." The law of another state must be proved as a fact, and such fact to be considered by an appellate court must be made a part of the record. In the absence of a bill of exceptions, a finding of facts made by the trial court is conclusive upon this court. We are therefore bound in this case by the finding of the trial court that the judgment for alimony being in monthly payments is, as to installments already past due, "subject to modification, alteration and change, and that said amount already due was and is at all times under the control of the chancellor making the same." It might be stated that if we were free to consider the statutes of Kentucky and the numerous cases cited in oral argument and in the briefs of counsel, we might probably arrive at a different conclusion in regard to the finality of the judgment so far as past due installments are concerned, in view of the fact that no application has been made for any modification, alteration or change. But being bound by the finding of facts, as we have stated, we must find that the judgment for alimony is so Collard v. Collard. discretionary with the circuit court of Campbell county, Kentucky, that even in the absence of an application to modify the decree, no vested right exists upon which the court here can act. In other words, the judgment, in the condition in which it is found to be by the trial court, is one to which the case of Lynde v. Lynde, 181 U. S. 186, 187 [45 L. Ed. 814], will apply, and not a case in which the later and broader doctrine announced in the case of Sistare v. Sistare, 218 U. S. 1 [30 S. Ct. 682], would be applicable. The judgment below is therefore affirmed. PROCESS. [Knox (5th) Court of Appeals, October 25, 1917.] Powell, Houck and Shields, JJ. EDWARD BLACKBURN V. WEBB PEOPLES. Summons in Foreclosure of Common Law Lien Not Issued for Service Outside of County. No authority exists for issue or service of summons outside of the county upon a nonresident defendant who has been sued for foreclosure of, a common law lien. [Syllabus by the court.] ERROR. Wm. M. Koons and Wm. G. Koons, for plaintiff in error. HOUCK, J. This suit was originally commenced in the common pleas court of Knox county, the plaintiff in error being the plaintiff below and the defendant in error being the defendant below. The cause of action set forth in the petition was for the foreclosure of a common law lien claimed to be held by the plaintiff on a certain Ford automobile owned by the defendant, upon which plaintiff had made certain repairs and performed work and labor thereon. Plaintiff claimed there was due him for 26 O. C. C. Vol. 39. |