Midgley v. Denhalter

WOLFE, Chief Justice

(concurring in the results).

I concur in the results for the reasons stated in the opinion of Mr. Justice HENRIOD. I do not think this case requires that we open the door as wide as the majority would open it. When it is necessary to do so I may accede but I shall reserve such ruling at this time.

In regard to the contention of the appellants that the provisions of Sec. 14-2-14, U. C. A. 1948, apply only to a child who has been determined in a bastardy proceeding to be the offspring of the man who marries the child’s mother, I make the following observation. It is unreasonable to think that the Legislature desired to extend legitimacy to a child determined in a bastardy proceeding to be the offspring of the man who marries the child’s mother, but to withhold the stamp of legitimacy from a child determined in a proceeding to establish heirship to be the offspring of the man marrying the child’s mother. While it is true that Sec. 14-2-14 is part of the chapter on bastardy, there is no reason why the Legislature should regard the findings of a court in a bastardy proceeding with more sanctity than the findings of a court in an action to *393determine heirship. Both are civil actions and parentage can be proved in the same manner in both types of actions. In either type of case if the court finds that the man who marries the child’s mother is the child’s father, the child’s status as to legitimacy should be the same. The important consideration is that it be judicially determined that the child is the offspring of the man marrying the child’s mother. The type of proceeding in which such question is determined would seem to be immaterial. This seems particularly true in view of Sec. 14-4-12, U. C. A. 1943, legitimating children born out of wedlock but publicy acknowledged by their father as his offspring. Here the Legislature legitimated a class of children, the parentage of whom is not determined in any type of judicial proceeding.