57 S.E. 386 | N.C. | 1907
The motion of appellee to dismiss this appeal because not docketed at last term seven days before the call of the district to which it belongs (Rule 5) must be denied. The case was tried at May Term, 1906, of Buncombe County. It was required to be docketed, therefore, at Fall Term, 1906, of this Court. If not docketed seven days before beginning the call of the district to which it belonged, as required by Rule 5, the appellee could have had the appeal dismissed by complying with the requirements of Rule 17. Vivian v. Mitchell, ante, 472, and cases cited. But the appellee not having done this, the appellant could docket at any time during said Fall Term, but not later (S. v.Telfair,
This is an action against defendant register of deeds for Buncombe County, under Revisal, sec. 2090, for recovery of penalty of $200 for issuing license for marriage of plaintiff's daughter, who was under 18 years of age, and without plaintiff's consent. This action was begun the day after the marriage. The defendant demurred ore tenus, in the Superior Court that the warrant did not contain the allegation, "without reasonable inquiry." Maggett v. Roberts,
The plaintiff testified that he lived in the same town with the register of deeds, whom he had known for ten or twelve years, he (the plaintiff) having been for part of this time deputy sheriff and later keeper of the county jail, defendant at that time serving in some capacity under the register of deeds, and often seeing plaintiff; that there was a telephone in the office of defendant and another in the factory, half a mile distant, where plaintiff and his daughter worked; that his daughter was at that time only three days over 16 years of age; that he did not give his consent for the issuing of the license or marriage; that he received no inquiry of defendant, and as soon as he heard of the marriage he went to look for defendant, who on seeing him spoke first and said: "I know your business, but I am not to blame. I qualified the man" — which last was not true.
The defendant testified that he issued the license for plaintiff's daughter to marry one Kine, upon the application of a "good-looking man, of good address," whom he had seen on the street and had spoken to before, but whose name he did not know; that he asked this man the (633) usual questions, and the man signed the oath on back of the *437 license, but he did not administer the oath to him. He could not say that he asked this man (whose name is O'Connor) where he lived, nor who the plaintiff was or where plaintiff lived, and does not remember whether O'Connor said the girl's mother was dead or not; that he (defendant) knew plaintiff, and did not know whether or not there was any other Laney in the county.
Plaintiff testified that O'Connor's general character was bad, and this was not contradicted. The failure to administer the oath to O'Connor, while not fatal, was a circumstance, along with the other evidence, tending to show a lack of reasonable inquiry. Furr v. Johnson,
There being no conflict in the evidence, whether reasonable inquiry was made was a question of law (Joyner v. Roberts,
Here the defendant issued a license for the marriage of a (634) motherless girl, 16 years and 3 days of age, without the written (or any) consent of the father, as required by the statute, without any inquiry as to the consent or residence of the father, whom he had known for ten or twelve years, and whom, if he had inquired as to his place of work, he could have reached by phone in his office. The application was made by a man whose name was not known to the defendant, whom he does not show to have been trustworthy, and as to whom the only evidence is that his general character is bad. Such inquiry as the defendant made in this case was not reasonable. It was purely perfunctory and did not furnish the security against a violation of the law required by a proper observance of the requirements of the statute.
No error.
Cited: Joyner v. Harris,
