AWARD FOR. SUPPORT OF ILLEGITIMATE CHILD.

Court of Appeals for Hamilton County.

#### Joseph Scheve v. State, ex rel Josephine Derie.

Decided, March 27, 1916.

*Bastardy*— Preferable *Form of Award for Support of Child*— Reputed *Father May Consent to Pay Weekly*— Section 12123.

Under the provisions of Section 12123, General Code, the reputed father of a bastard child should be adjudged to pay a lump sum, which may be made payable in installments, but where by silence and otherwise he consents to an order for payment of a fixed amount weekly, with the privilege to the parties to apply at any time for a modification of the order, he will not be heard to complain by a reviewing court.

*Dempsey &*Nieberding, for plaintiff in error.

*Charles F. Hornberger*and *Harry B.*Weber, contra.

Gorman, J.

This cause was a second time submitted to this court under an application for a rehearing.

*475On the original submission this court affirmed the judgment of the court of common pleas, and the court still and now adheres to its former decision.

It appears from the meager record'before us that the plaintiff in error was adjudged the reputed father of a bastard child, in the common pleas court, and thereupon the court adjudged him to stand charged with the maintenance of said child in the sum of five dollars per week until the further order of the court.; and in default of such payment that he stand committed to the county jail of Hamilton county, Ohio. The judgment further provided that upon the birth of said child the said amount may be modified or increased or a lump sum decreed to be paid the mother, Josephine Derie,.in full satisfaction. This entry was made on March 18,' 1914.

On May 6, 1914, Sehreve,'defendant below, moved the court to modify the said judgment and reduce the amount ordered to be paid to said Josephine Derie.

On July 1,1914, the court made this entry:

> “By consent of parties the motion to lessen the weekly payments came on for hearing, and it is ordered and decreed that the defendant pay to plaintiff a weekly sum of four dollars per week instead of five dollars as decreed in the temporary judgment hereinbefore given.

> “It is also ordered and decreed that the parties may at any time apply for a lessening or addition to the sum herein ordered.”

We are of the opinion that under the provisions of Section 12123, General Code, the court should have adjudged the reputed father to pay a lump sum, which might have been made payable in installments. But in view of the language above set out we fin'd that Scheve consented to this judgment against him, and not that he merely consented to the hearing of the motion as claimed by his counsel. This belief is strengthened when we note that no exception or objection was made to the judgment entry, and that it was more favorable to him than was the judgment entry of March 18, 1914, to which he neither excepted nor objected.

*476Having consented to this last judgment we see no good reason why this court should now be called upon to reverse a judgment favorable to him and to which his consent was given.

Furthermore, it appears from the entry to which error is prosecuted that the parties were accorded the right to apply to the court at any time, to have this anomalous judgment modified, by increasing or diminishing the sum ordered paid.

For these reasons the judgment is affirmed.

Jones (E. IT.), J., and Jones (Oliver B.), J., concur.