Crook v. Webb

• Decision Date: 19 April 1900
• Citation: 28 So. 384,125 Ala. 457
• Parties: CROOK v. WEBB.
• Court: Alabama Supreme Court

28 So. 384

125 Ala. 457

CROOK v. WEBB.

Supreme Court of Alabama

April 19, 1900

Appeal from city court of Anniston; James W. Lapsley, Judge.

Action by Ira P. Webb against Emmett F. Crook. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought against the judge of probate of Calhoun county to recover the statutory penalty of $200 for the defendant's issuing a license to his daughter, who was under 18 years of age, without the consent of her parents or guardian. The complaint was as follows: "The plaintiff claims of the defendant two hundred dollars as a forfeiture or penalty prescribed and allowed by section 2848 of the Code of Alabama, and recoverable by parents against judges of probate for issuing license for the marriage of any female under the age of 18 years, and not having had a former husband, without the consent of the parents. The plaintiff further avers that he is the father of Daisy May Webb, and that the said Daisy May Webb was on the 26th day of February 1899, under the age of 18 years; that she is a female, and had not had a former husband; and that the defendant is the judge of probate of Calhoun county, Alabama, and on or about said date issued a license for the marrige of one John H McKay, a male, to the said Daisy May Webb, without the consent of the parents or guardians of said Daisy May Webb or either of them, either oral or written, and contrary to the provisions of the said statute; and by reason thereof the said John H. McKee, alias Jno. H. McCay, alias Jno. H. McKay married the said Daisy May Webb." To the complaint the defendant demurred upon the following among other grounds (1) Said complaint fails to show that the plaintiff is the parent or guardian of said Daisy May Webb, and fails to show that he has any right to maintain said action or suit. (2) Said complaint fails to show that John H. McKay was under 21 years old, and did not have a former wife, when said license was issued, and that the defendant issued it without requiring the personal or written consent of the parents or guardian of said Daisy May Webb. (3) That the complaint fails to show that when said license was issued Daisy May Webb had no parent or guardian, and fails to show that the defendant issued it without requiring the consent of the parents or guardian of said Daisy May Webb to be given to said marriage. (4) The averment in said complaint that defendant issued said license "contrary to the provisions of said statute" is the averment of a conclusion of the pleader and the complaint fails to show facts sufficient to support such conclusion, and fails to specify or show what provision or provisions of the statute the issuance of said license was violative of or contrary to, and fails to show how or wherein its issuance was contrary to any statute or any provisions of any statute. (5) For that the statute, to wit, section 2848 of the Code of Alabama, upon which this action is based, as shown by said complaint, is void for uncertainty, inasmuch as it provides for a forfeiture by the probate judge of $200 to the parent or guardian of a minor to whom he issues a marriage license contrary to the provisions of chapter 75 of the Code of Alabama, for which the parent or guardian may sue, without specifying or designating which parent is entitled to said forfeiture, or which one is entitled to sue therefor. (6) For that said complaint fails to show sufficient facts with the requisite precision to entitle the plaintiff therein to recover in this action. The defendant pleaded the general issue. On the trial of the cause, W. F. McCain, a witness for the plaintiff, testified that he was a minister of the gospel, and as such married J.H. McKay to Daisy May Webb on the night of February 26, 1899, in Anniston, Ala. Upon the witness being asked by the plaintiff, "What authority had you for solemnizing the marriage?" the defendant objected to this question upon the grounds that it called for the conclusion of the witness, and that there was better evidence of such authority. The court overruled the objection, and the defendant duly excepted. Upon the witness answering that he solemnized the marriage under the authority of the marriage license, the defendant moved to exclude the answer upon the same grounds that he offered to the question, and upon the further ground that neither the existence nor loss of such license had been shown. The court overruled this motion, and the defendant duly excepted. The bill of exceptions recites that "here defendant and defendant's attorney stated to the court, in answer to the subp na duces tecum to the defendant, that they had not in their possession a license such as was called for in the subp na." One Morgan then testified as a witness for the plaintiff that he had made an examination of the record of marriage licenses which was on file in the defendant's office, but had been unable to find the license issued to John H. McKay and Daisy May Webb. Ross Blackmon, plaintiff's attorney, also testified that he had searched the marriage license record in the probate office and all the licenses returned to said office since January, 1899, but had been unable to find any license issued to John H. McKay and Daisy May Webb. The plaintiff then continued the examination of the witness McCain, and he testified that he was familiar with the handwriting of the defendant, and the license under which he had solemnized the marriage...