The plaintiff in error appeals from an order of the court granting the state of Oklahoma a new trial in a civil proceeding prosecuted under section 8059, C. O. S. 1921, which provides:
"Whenever any woman residing in any county of this state is delivered of a bastard child, or is pregnant with a child which if born alive will be a bastard, complaint may be made in writing, duly verified, by any person to the county court of the county where such woman resides, stating that fact and charging the proper person with being the father thereof. The proceeding shall be entitled in the name of the state against the accused as defendant."
The plaintiff in error was prosecuted under said section. The jury rendered a verdict for the plaintiff in error. Motion for new trial was filed by the state and sustained and the first proposition presented on appeal is that the court erred in overruling the defendant's demurrer to the amended complaint, for the reason that the court was without jurisdiction of said action.
The plaintiff in error contends that the evidence does not show that the prosecutrix or complainant was a resident of Harper county at the time complaint was filed against the defendant.
The prosecutrix testified, C.-M. 32:
"Q. Where do you live? A. Laverne, Okla. Q. How long have you lived there? A. I have lived there the last time since the 30 of September. Q. When did you first come to Laverne? A. May 25, 1925. Q. Have you at any time since your arrival in Harper county, in May 25, 1925, established a residence permanently anywhere else? A. No, sir; I have not."
The plaintiff in error cites the case of Pinkstaff v. State,112 Okla. 91, 240 P. 107, wherein it is said:
"In an action sought to be brought under section 8059, C. O. S. 1921, against the father of, an illegitimate child for bastardy, the fact of the residence of the mother of such child is jurisdictional, and a complaint which fails to state that the mother of such child is a resident of the county in which the action is brought is not sufficient to constitute a cause of action."
In this case the amended complaint (C.-M. 13) recites that Ruby Brock is a female person and a resident of Harper county in the state of Oklahoma, and was at all times a resident of said county and state.
Section 8059, supra, provides in part: "Whenever any woman residing in any county of this state is delivered of a bastard child. * * * complaint may be made. * * *" Thus it is seen that the statutes only require that she be residing in the county where the complaint is made.
The statute relating to the situs of a woman is made for her convenience, and the jurisdiction of the cause is fixed in the county where she is then residing in the state. It frequently happens that where an unfortunate woman becomes the mother of an illegitimate child she is cast off and shunned by almost everyone, save and except her mother, and in the instant case the complainant's mother died during the early infancy of the complainant. We do not think that the statute herein requires that degree of a permanent, fixed, and legal residence as generally understood and required under other proceedings.
In the instant case the complainant had resided for several weeks in Harper county before filing the complaint. Harper county was her only known place of residence. To hold that the complainant in the circumstances of the present case was not residing in Harper county at the time of the filing of the complaint would defeat the letter and the spirit of section 8059, supra.
The second proposition urged by the plaintiff in error is that the court committed error in sustaining the motion for new trial, and he cites the case of Muskogee Electric Traction Co. v. Reed, 35 Okla. 334, 130 P. 157; however, the plaintiff in error concedes that said case is not exactly analogous with the proposition here presented. *Page 41
The plaintiff in error also cites the case of Van Arsdale Osborne Brokerage Co. v. Hart, 62 Okla. 119, 162 P. 461, wherein it was held that in the absence of demurrer or motion for directed verdict, the sufficiency of the evidence to sustain the verdict of the jury in an action at law cannot be presented to this court on appeal and this court is concluded by the verdict of the jury unless an exception was duly taken thereto.
A new trial may be granted under the 6th subdivision of section 572, C. O. S. 1921, wherein it appears that the verdict, report, or decision is not sustained by sufficient evidence or is contrary to law.
On the very date of the adoption of the opinion in the Van Arsdale Osborne Brokerage Co. v. Hart, supra, to wit, Jan. 2, 1917, this court also adopted the opinion in the case of Hennessy Oil Gas Co. v. Neeley, 62 Okla. 101, 162 P. 214, wherein it is stated:
"In passing on a motion for new trial, in which motion the verdict of the jury is challenged upon the ground that it is not supported by the evidence in the case, it is the duty of the court to weigh the evidence and determine its effect, and if the verdict is one which he cannot conscientiously approve, and he believes it should have been for the opposite party, it is his duty to set it aside and grant a new trial."
Evidently the court distinguished the two cases. In the examination of the first case it nowhere appears that the sufficiency of the evidence was ever called to the attention of the court, whereas in the latter case it was called to the attention of the trial court in the motion for new trial.
In the instant case the complaining witness swore positively that the accused was the father of the illegitimate child. The defendant did not see fit to deny the accusation. The trial judge saw the witnesses, heard them testify, and after the verdict was returned by the jury in favor of the defendant, and thereafter on motion of the state he granted a new trial.
After reading the entire record, we are unable to say that the trial judge abused his discretion in sustaining the motion of the state to grant a new trial on the ground that the verdict was not sustained by the evidence. It is the rule of this court that, unless a trial judge abuses his discretion in granting a new trial, his action thereon will not be disturbed. It is the judgment of this court that the action of the trial court in granting a new trial is affirmed.
MASON, C. J., and RILEY, HEFNER, CULLISON, SWINDALL, and ANDREWS, JJ., concur. HUNT. J., absent. CLARK, J., dissents.