Wooley v. Bruton

• Decision Date: 29 November 1922
• Docket Number: 479.
• Citation: Wooley v. Bruton, 184 N.C. 438, 114 S.E. 628 (N.C. 1922)
• Parties: WOOLEY v. BRUTON, JUSTICE OF THE PEACE.
• Court: North Carolina Supreme Court

114 S.E. 628

184 N.C. 438

WOOLEY v. BRUTON, JUSTICE OF THE PEACE.

No. 479.

Supreme Court of North Carolina

November 29, 1922

Appeal from Superior Court, Montgomery County; Ray, Judge.

Action for statutory penalty by B. F. Wooley against O. C. Bruton Justice of the Peace. Judgment for plaintiff, and defendant appeals. No error.

This action was begun before a justice of the peace, against the defendant, a justice of the peace, for the recovery of the penalty of $200 for performing a marriage ceremony "without first having a marriage license therefor delivered him as required by law." Judgment having been rendered against the plaintiff, he appealed to the superior court where the action was tried de novo. The evidence showed that the defendant performed the marriage ceremony in question at Mt. Gilead in the county of Montgomery on Saturday night, January 22, 1916, and the defendant testified that he received the marriage license in the mail from Troy on Sunday, the day after the ceremony was performed. This action was begun on January 19, 1917. Verdict and judgment for plaintiff. Appeal by defendant.

Stacy J., dissenting.

R. T Poole, of Troy, for appellant.

Bob V. Howell and Dockery & Wildes, all of Troy, for appellee.

CLARK C.J.

There were two issues submitted to the jury:

(1) "Did the defendant unlawfully and without a license being first delivered to him, as required by law, perform a marriage ceremony between Dock Wooley and Lucy Barringer?"

(2) "Is the plaintiff's right of action barred by the one-year statute of limitation governing the right to sue for penalty in such case?"

The jury responded to the first issue, Yes, and to the last issue, No.

The motion for nonsuit made at the close of plaintiff's evidence was refused, but the motion was not renewed at the close of all the evidence. The motion for nonsuit at the conclusion of the plaintiff's evidence was waived by the introduction of evidence by the defendant and the failure to renew motion on all the evidence. C. S. § 567. Bordeaux v. Railroad, 150 N.C. 530, 64 S.E. 439; Smith v. Pritchard, 173 N.C. 722, 92 S.E. 257.

It appearing that the summons was issued on January 17, 1917, and that the illegal act complained of was committed on January 22, 1916, we see no pertinency in the plea of the statute of limitations (C. S. 443[2]) and indeed the exception in that regard was abandoned because not set out in the appellant's brief. Rule 34 of this court, 174 N.C. 837, 110 S.E. vii.

The only exception left to be considered is the instruction of the court to the jury that if they believed all the evidence in the case to answer the first issue, Yes. C. S. § 2499 provides:

"Every minister or officer who marries any couple without a license being first delivered to him as required by law, * * * shall forfeit and pay $200 to any person who sues therefor."

The defendant testified in his own behalf that one Harris came into his store late Saturday afternoon on January 22, 1916, bringing Dock Wooley, whom he had arrested in Richmond county on a criminal charge; that said Dock Wooley wished to settle the matter and he suggested that the best way was for Dock to marry the girl. Thereupon he called up over the telephone O. P. Deaton, the register of deeds at Troy, the county seat, related the circumstances, and Deaton told him that he would issue the license, put it in the post office and phone him, and that after the license had been issued and put into the mail he could go ahead and perform the marriage ceremony. Later that afternoon, the register of deeds phoned him that the license had been issued and stamped and was already in the post office perfectly all right, and to go ahead and marry the parties; that this was about 8 or 9 o'clock; that he then performed the marriage ceremony. He did not receive the license until the next, morning, which was Sunday.

C. S. § 2498, emphasizes the requirement that the license must be first delivered to the officer before the solemnization of the marriage:

"No minister or officer shall perform a ceremony of marriage between any two persons, or shall declare them to be man and wife, until there is delivered to him a license for the marriage of the said persons, signed by the register of deeds of the county in which the marriage is intended to take place, or by his lawful deputy."

It is true that the marriage is not invalid because solemnized without a marriage license (Maggett v. Roberts, 112 N.C. 71, 16 S.E. 919; State v. Parker, 106 N.C. 711, 11 S.E. 517; State v. Robbins, 28 N.C. 23, 44 Am. Dec. 64), or under an illegal license (Maggett v. Roberts, supra), but it is clear that both these sections of the statute require that the license shall be first delivered to the officer before the marriage is solemnized, else under the latter statute he is liable to the penalty sued for in this action.

The defendant relies upon the well-settled principle of law that delivery of goods by a vendor to a common carrier is delivery to the vendee. Hunter v. Randolph, 128 N.C. 92, 38 S.E. 288, and cases there cited. But that case rests upon the ground that the carrier is the agent of the vendee to whom the possession passes from the vendor upon the delivery of the goods to the carrier. He also relies upon Lynch v Johnson, 171 N.C. 611, 89 S.E. 61, and cases there cited, which hold that, where the holder of a legal title executes a good and sufficient deed to another for the latter's interest in land and deposits the deed in the post office in an envelope properly addressed, by mailing the deed the grantor parts with his authority and control over it, and this passes the title in the property to his grantee. Bu...