12 So. 2d 180 | Ala. | 1943
The action is against appellant as judge of probate for the penalty to which he is subject if he issues a license for the marriage of a minor without the consent of the parent or guardian.
This court has held that the sureties on the judges of probate's official bond are not liable in an action for tort. Jeffreys v. Malone et al.,
In the case of Phillips et al. v. Morrow,
See the cases of Wilson v. Orr,
In 64 A.L.R. 934, the note is to the effect that: "In Phillips v. Morrow, 1923,
The cases appear to be unanimous on this point, except Ewton v. McCracken,
It follows from authorities cited here that the liability under Code 1940, T. 34, § 15 is statutory and highly penal and must be strictly construed. The penalty is pronounced against the judge of probate personally. The penalty prescribed is by way of punishment, and is not compensatory, and the bondsmen are only liable in a compensatory way. Jeffreys v. Malone et al., supra.
The suit in this case being against the judge of probate in his official capacity, and not as an individual, and the judgment being in favor of the plaintiff against him in his official capacity, and not against him personally, the affirmative charge in favor of the defendant should have been given. The court committed error in refusing it and committed error in giving the affirmative charge for plaintiff.
It is insisted by appellee that the ruling on demurrer induced by plaintiff to strike the individual defendant, leaving only the judge of probate as defendant, and by such pleading induced the amendment of the complaint, he is estopped from now insisting that an improper party was before the court. However this is, we will consider the further insistence as to the evidence that is material under the statute.
The trial was had on issue joined on the complaint, the plea of the general issue and special plea number four.
It is the insistence of appellee that the affidavit offered in evidence is not sufficient under Code 1940, T. 34, § 16. The affidavit states that the answers to the questions concerning said parties to the marriage "are true to the best of his knowledge, information and belief." Objection was made to this affidavit by the plaintiff on the following grounds:
"Plaintiff objected on the ground that the affidavit or no part of the whole record complies with the statute under which this *76 suit is brought, and because the affidavit relied on is on information and belief, and not positive terms, and because the affidavit only states what the affiant believes and not what he knows, and because it is made by the party marrying the girl, and the affidavit only purports to be an application for a marriage license, and that the affidavit is not what the statute contemplates and requires, and because the party making the affidavit is an interested party and disqualified."
The court sustained this objection, to which exception was seasonably reserved by appellant.
In the case of Worthen v. State ex rel. Verner et al.,
"The statute (section 2997) exacts an affidavit to the effect that the 'facts' averred 'are true.' The objections taken in the quoted grounds of the motion would, if sustained, enforce the construction, of the just mentioned provisions of the statute, that the affidavit could only be made by a person or persons having personal, actual knowledge of the facts alleged; or, to state that result conversely, that information and belief would not afford the statute prescribed verification of such accusation."
The test of the sufficiency of the paper as an affidavit is the privilege to assign perjury upon it if the statements thereon contained are false. Sellers v. State,
The affidavit offered in this case was that the girl, Leona McGuire, was nineteen years of age at the time the license was issued. The probate judge required the affidavit as a precautionary measure before issuing licenses. The affidavit is probably in the same language as other affidavits used by judges of probate all over this state in issuing such licenses. It indicates that the probate judge was acting in good faith in the issuance of said license. The statute being penal in nature, we hold that the probate judge has used the necessary precaution in requiring affidavits before issuing marriage licenses.
Code 1940, T. 34, § 16 does not require that the affidavit be made by a person having knowledge of the facts, but that the affidavit must be made by "such minor, or some other credible person claiming to know the fact." [Italics supplied.]
The defendant offered to prove that the man, Jurdy Washington Hughes, who made the affidavit to procure the issuance of the license was a credible person. This evidence was admissible under the issue being tried. The statute, Code 1940, T. 34, § 16, provides that the affidavit must be made by the minor or some other credible person, and this is one of the averments of plea number four.
Evidence as to the age of a person is an exception to the rule of hearsay evidence, in that the age of a person depends more or less upon information and belief or reputation. If this were not true, it would be impossible in many cases to prove one's age. A person would have to be present at the birth in order to actually know when a person was born. Age is established by information, reputation, acquaintance, and surrounding circumstances, and can be established by circumstantial evidence. It follows that an affidavit as to the age of a person necessarily depends more or less upon information and belief. Duncan v. Watson,
We wish further to indicate that the case of Worthen v. State ex rel. Verner et al.,
The testimony of the clerk in the office of the judge of probate who took applications for licenses and who required the oath in question, shows that the application disclosed the age of the girl Leona McGuire, that she was "Color — W", Age "19" date of birth "3-23-1921", which we judicially know means that she was a white girl and born March 23, 1921, and defendant sought to show that affiant was a credible person. This is all the statute requires.
It results, therefore, that the court was in error in excluding affidavit offered in evidence in this case, in giving the affirmative charge for plaintiff, and in refusing a like charge for the defendant.
It results from the above that the judgment of the circuit court should be reversed and the cause remanded.
Reversed and remanded.
All the Justices concur.