Crook v. Webb

125 Ala. 457 | Ala. | 1899

TYSON, J.

A number of grounds of demurrer were assigned to the complaint and overruled by the court ¡beloAV. The first ground insisted upon in argument is, that it is not aA^erred that the plaintiff is either the “parent or guardian of the female, AAdiom the complaint shows Avas under 18 years of age.” An examination of the complaint discloses that it contains the averment that the plaintiff is her “father.” The argument is made1 that the statute confers the right of action upon the legal parent, or parent in contemplation of law, and not upon a putative father.. — § 2848. That the use of the word “father” under the rules of construction of pleading must be construed as having reference to putative rather legal father. To adopt -this construction would be to presume, or rather to impute to the parents ■of the girl a violation by them, not only of the laws of their State, but of decency, gentility and morality. No .such presumption can be indulged. On the contrary, we will presume, if need be, that he is her legal father- — ■ •that she was the offspring of a legitimate wedlock, a marriage 'solemnized in accordance with the requirements of the law and of Christianity.

The next ground of demurrer insisted upon in argument is the same one considered by this court in Cotton v. Rutledge, 33 Ala. 130, and held in that case to be bad. The insistence is made that the opinion in -that -case ivas erroneous and that it should be overruled. In short, we are asked to hold that unless both the contracting parties to the marriage are under the ages, respectively, 18 and 21 years, that the parent or guardian -•of the minor has no right under the statute. This we are unwilling to do for the very cogent reason given in that opinion. The -other grounds of demurrer which were overruled, though assigned as error, are not insisted upon in argument, and we must decline to -consider 'them.

The testimony showed that the defendant signed a number of planted licenses with blanks and sent them •to one J. S. Kelly, a justice of the peace, giving him full authority to fill out the blanks. That Kelly filled, out the blanks of one of these for the marriage of the plaintiff’s daughter, which was taken to a minister of the gospel, who under the authority given him under it, performed the marriage ceremony between the plaintiff’s •daughter -and one McKay. It was without dispute that, neither of the girl’s parents consented to the issuance of this license or to her marriage, and that she was under 3.8 years of age, and that she had never had a former 'husband. The marriage license was not produced upon tiie trial, but the evidence introduced by the plaintiff •showed that the minister who performed the marriage, ceremony, after doing so, delivered it to the defendant, •and that search had been made in his office for it without avail. Tlie search made was sufficiently shown by the evidence to authorize the introduction of secondary evidence of the contents of the license. There was no error, therefore, in permitting the witness, McCain, the minister who performed the ceremony, to state that he solemnized the marriage under the authority of a marriage license, taken in connection with the proof of the signature of the defendant to tlie license under which he acted.

Nor did the court commit an error in permitting the plaintiff’s counsel on cross-examination to ask defendant the question: “Is it not your custom to sign blank licenses and give them to justices of the peace in different parts of the county to be issued?” This was clearly within the latitude allowed on cross-examination, and it did not call for irrelevant, immaterial or illegal evidence. It was very material in view of the conflict between the testimony of the defendant and the witnesses, Kelly and McCain.

The evidence, in our opinion, is amply sufficient to support the judgment of the lower court. — Wood v. Farnell, 50 Ala. 546.

Affirmed.