The only issue raised by this appeal is whether in a paternity action where the defendant has made a timely request for blood tests of the parties and the child, and the mother has terminated her parental rights to the child without notice to the defendant, the failure of the complainant to appear with the child for the blood tests was a denial of due process of law to the defendant, and thus grounds for dismissal of the action on the merits.
Paternity actions are special civil proceedings and are purely statutory in origin.
"(2) When the court determines that a blood test is relevant to any proceeding under sub. (1) ... the court shall, upon request of any party, order that such test be made.... All arrangements for such tests shall be made by the party requesting the same and any failure on the part of said party to have said tests performed prior to the date of trial shall be deemed a waiver of said party's right to such tests unless good cause is shown to the contrary....
"(3) Whenever the results of said tests exclude the defendant as the father of the child the same shall be conclusive evidence of such fact and the court shall dismiss said action.... Such tests shall be receivable in
The defendant's right to blood tests which might conclusively prove that he was not the father of the child is recognized by both sides and the trial court as a substantial right.
The appellant, on the other hand, argues that the drastic result of dismissal is not required nor even contemplated by the governing statutes. According to appellant, the remedy available to defendant here is that provided by the last sentence of the above-quoted statute: Complainant's refusal to submit to the blood test can be commented on at trial. This argument is untenable. The right to comment at trial on the other party's failure to appear for a blood test hardly offers the defendant the same protection a favorable result in a blood test affords. Moreover, the last sentence of this statute speaks of a party refusing to submit to a blood test. In this case it is not so clear that complainant was still a party within the meaning of this phrase at the time she failed to appear for the blood test. Even the corporation counsel, who presumably was representing her, found it necessary to request a body attachment when she failed to respond to the subpoena for the May 9, 1968, hearing. Clearly, the real party in interest in this case is the county which
Furthermore, what is involved in the instant case is not only the failure of the complainant to appear for the ordered blood test, but the failure of the child to be produced for such a test.
Accordingly defendant contends, as a remedy supplementary to his right to comment at the trial on complainant's refusal to take the required blood test, that to deny him the right to both these important blood tests is to deny him due process of law. Due process must be afforded parties in paternity actions just as in all other proceedings affecting the rights of individuals.
Fair play is an important factor in the consideration of due process of law.
Fundamental fairness leads us to conclude that defendant did all he could to take advantage of the statutorily created right to the blood tests. To preclude him from exercising that right is a violation of due process. The importance of the right was recognized by Judge FIORENZA, when he said:
"This is a voluntary act on the part of the complainant to place the child for adoption. She has to give her consent to adopt the child.
"There is no prohibition that this court knows that there couldn't be some arrangements made at the time that she gives up her consent for the child to be brought to a clinical laboratory for the taking of a blood test; but here you strip the defendant of a valid, and about one of the only true defenses in a paternity case, except credibility. You strip him of this remedy of a blood test, which if it does exclude the defendant, the statute says that the court `shall' dismiss the case, and the complainant is taking this remedy away from him completely."
Appellant argues that a decision like this would have the effect of foreclosing a claimant from recovery in cases where the child has died,
By the Court.—Judgment affirmed.
HALLOWS, C. J., took no part.