Lenahen v. Desmond

C. Allen, J.

No statute requires the filing of a supplemental complaint in the Superior Court. It is not essential in order to give jurisdiction, and the method of averring the facts and of presenting the issue by means of a supplemental complaint has been adopted in practice as a mere matter of convenience. Chapel v. White, 3 Cush. 537. Burt v. Ayers, 116 Mass. 263. Easdale v. Reynolds, 143 Mass. 126. Accordingly, it has been held that the supplemental complaint need not be sworn to; Sabins v. Jones, 119 Mass. 167; that it may be signed by attorney; Burt v. Ayers, 116 Mass. 263; that it may be filed at any term; Reed v. Haskins, 116 Mass. 198; and that it may be amended. Jones v. Thompson, 8 Allen, 334. Hawes v. Gustin, 2 Allen, 402. In Rice v. Chapin, 10 Met. 5, the complaint made before the magistrate contained no averment that the prosecutrix accused the respondent in the time of her travail, which it was then necessary for her to do. No supplemental complaint was filed in the Court of Common Pleas, and, objection being made on this ground, that court held that none was necessary; but, on a hearing of the exceptions, this court held that, since no prosecution could be supported without proof of that fact, it ought to be distinctly alleged, and that, since the *294objection was seasonably taken, the case should be remanded to the Court of Common Pleas for trial, after a proper complaint should be filed. But the law is now different, and ever since the passage of the Gen. Sts. c. 72, § 8, it has been unnecessary for the prosecutrix to accuse the respondent in the time of her travail. Leonard v. Bolton, 148 Mass. 66. The complaint before the district court in the present case was not made till after the birth of the child, but it contained an averment of every fact necessary to charge the respondent. There was therefore no occasion to require the formality of a new complaint.

Besides, the objection that there was no supplemental complaint was not seasonably taken. If the objection had been insisted on before verdict, the court might have allowed such complaint to be filed then. The omission to insist upon the objection was a waiver of it. Gould v. Hawkes, 1 Allen, 170. Parker v. Parker, 146 Mass. 320.

Moreover, the Pub. Sts. c. 167, § 82, provide that a judgment shall not be arrested for a cause existing before the verdict, unless such cause affects the jurisdiction of the court. The want of a supplemental complaint did not affect the jurisdiction of the court, and the above provision of the statutes is applicable to bastardy cases. Thompson v. Kenney, 110 Mass. 317. Duhamell v. Ducette, 118 Mass. 569.

For all these reasons, the motion in arrest was properly denied. Exceptions overruled.