Wilkinson v. Dellinger

• Decision Date: 01 May 1900
• Citation: Wilkinson v. Dellinger, 126 N.C. 462, 35 S.E. 819 (N.C. 1900)
• Court: North Carolina Supreme Court
• Parties: WILKINSON v. DELLINGER et al.

35 S.E. 819

126 N.C. 462

WILKINSON

v.DELLINGER et al.

Supreme Court of North Carolina.

May 1, 1900.

PARENT AND CHILD—EMANCIPATION BY MARRIAGE—LOSS OF SERVICES.

The legal marriage of a female infant after attaining the age of consent emancipates her from her former parental duties; and if a parent is damaged thereby, because deprived of her services, he cannot recover damages from the register of deeds for unlawfully issuing a marriage license.

Appeal from superior court, Catawba county; Shaw, Judge.

Action by E. W. Wilkinson, in the name of the state, on relation, against P. M. Bellinger, register of deeds of Catawba county, and others, on his official bond. Prom a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

D. W. Robinson and C. E. Childs, for appellant.

M. H. Yount L. L. Witherspoon, and W. C. Feimster, for appellees.

PAIRCLOTH, C. J. The plaintiff's daughter Elvy at the age of 15 years married one Lawton, and the plaintiff (Elvy's father) sues the defendant on his official bond as register of deeds of Catawba county, for unlawfully issuing the marriage license. The complaint assigns two causes of action: (1) For the penalty prescribed by Code, §§ 1814, 1816; (2) for damages in depriving the plaintiff of the services and companionship of his daughter. The defendant demurred to the complaint for misjoinder of causes of action. He demurs to the second assignment, in that the marriage was lawful, and the plaintiff thereafter was not. in law, entitled to the services of his daughter, and had no property in them. His honor overruled the demurrer to the first assignment, from which no appeal was taken. He sustained the demurrer to the second cause of action, and the plaintiff appealed to this court.

The only question now before this court is the exception to the ruling of his honor on the demurrer to the second cause of action. A female may lawfully marry at the age of 14 years. Code, § 1809. From a time where memory runs not, the parent and those in loco parentis have a right to the company and services of the child during its infancy, and any one unlawfully invading that right is liable to the parent in damages. During the same period of time the law requires the parent to feed, clothe, and protect the infant. This right and these duties go together, and, as a general rule, when one legally terminates the other ceases. The same principle pertains to the relation of husband and wife, and the consequence of its violation is illustrated in Holleman v. Harward, 119 N. C. 150, 25 S. E. 972, 34 L. R. A. 803, where the defendant was punished in damages for selling...