Irwin v. Vick

• Decision Date: 12 April 1948
• Docket Number: 36600.
• Citation: 34 So.2d 725
• Court: Mississippi Supreme Court
• Parties: IRWIN et al. v. VICK et al.

34 So.2d 725

IRWIN et al. v. VICK et al.

No. 36600.

Supreme Court of Mississippi

April 12, 1948

Brandon Brandon, Hornsby & Handy, of Natchez, for appellants.

Engle Laub, Adams & Forman, of Natchez, for appellees.

ALEXANDER Justice.

In our former opinion, we supported our finding of no ceremonial marriage between Clem Peals and Laura Johnson by reference to the certificates of the circuit clerks of the respective counties, including those in which Laura Johnson resided that after examination they so found 'no record where marriage was ever contracted in this county between Clem Peals and Laura Johnson.'

It is suggested that such certificates are not sufficient to show that a valid marriage was not elsewhere contracted. Such contention, it must be conceded, it sound. However, a valid license was a prerequisite to any such marriage, and the basis for our finding ought to have included the fact that there was evidence that no license was issued.

We stated that 'no marriage license is shown to have been issued for this marriage.' We refer, therefore, to the testimony of one Norseworthy, an experienced abstractor, who testified that he had examined the marriage license record of the counties of Adams and Jefferson, in which Laura Johnson resided and where such license was required to be procured and also the records of other adjoining counties, including Concordia Parish in Louisiana. His testimony is uncontradicted that these records showed that no marriage license was issued. Such testimony is competent and was a sufficient basis for the chancellor's finding. Bourland v. Hatchcock, 186 Miss. 223, 188 So. 9; Reichert v. Sheip, Inc., 212 Ala. 300, 102 So. 440; Colton's Estate, 129 Iowa 542, 105 N.W. 1008; Peters v. Adcock, 196 Ga. 118, 26 S.E.2d 342; Blair's Foodland v. Shuman's Foodland, 311 Mass. 172, 40 N.E.2d 303; see also Com. v. Best, 180 Mass. 492, 62 N.E. 748; Long v. State, 120 Tex.Cr.R. 373, 48 S.W.2d 632; Wigmore on Evidence, 3rd Ed., Sec. 1244.

Our former opinion is therefore here supplemented to rest our decision, not upon the proof of an absence of a record of marriage, which concededly would be insufficient, but upon proof of the absence of a license.

Appellees have, in reply to the suggestion of error, filed a motion to stay the hearing on this appeal until the trial court has had an opportunity to 'perfect the record,' and 'furnish a supplemental transcript herein.' This...