Ross v. Sparks

81 N.J. Eq. 117 | New York Court of Chancery | 1912

Leamifg, V. C.

The record upon which this suit is submitted is essentially the same record which was before this court in Sparks v. Ross, 79 N. J. Eq. (9 Buch.) 99, which record has since been before the court of errors and appeals on an appeal from the decree entered in this court, the appeal having resulted in an affirmance of the decree. In each suit the single issue presented is whether the persons who are complainants in this suit are children of Edmund Ross, born to him in lawful wedlock. The conclusion reached in the former suit, both here and in the appellate court, was that the evidence did not justify an affirmative finding on that issue. TSTo new evidence having been presented, this court is now required to determine the same issue upon the same evidence. Under these conditions it is clearly unnecessary, if not, indeed, inappropriate.; to here- attempt an amplification of the views already expressed in Sparks v. Ross, supra; views adopted by the court of errors and appeals should be here considered conclusive.

Complainants’ counsel now contends, however, with great earnestness, that Jacob Loundenslager, the minister of the gospel who performed the marriage ceremony between Edmund Ross and Maria Moose (now Maria Prehl), was not a “stated” minister of the gospel, and that the documentary evidence of that marriage, as well as certain other evidence relating to it, should be excluded, and urges that this aspect of his claim has at no time been directly passed upon. As to the claim of counsel that this contention has not been heretofore considered he is clearly in error. In Sparks v. Ross, 75 N. J. Eq. (5 Buch.) 550, Mr. Justice Swayze, in delivering the opinion of the court of errors and appeals, upon the same record now present touching the ceremonial marriage referred to, stated with reference to the same claim now made by counsel, as follows: “Some question was raised as to the proof of a ceremonial marriage to Maria Moose, but in the view we take of the case, that question becomes comparatively unimportant, for we think the evidence is sufficient to establish a valid marriage between Edmund Boss' and Maria Moose at that time, provided they were both then free and capable of contracting marriage.” Counsel for complainants appears to persistently overlook the fact that even though it should be conceded that the clergyman who performed the marriage ceremony in question was not a “stated” minister and was not authorized by our statute to celebrate marriages, and that the marriage records should for that or any other reason be excluded, there yet remains the testimony of Maria to the effect that she and Edmund, in the home and in the presence of her parents, stood before the clergyman in question for the purpose of being married while the marriage ceremony was performed, and immediately thereafter lived together as husband and wife in the home of her parents. If this marriage ceremony occurred, as stated by Maria —and it cannot properly be doubted — Maria and Edmund thereby became husband and wife, if they were both at that time capable of contracting marriage, whether the ordained minister who conducted the marriage ceremony was “stated” or not.' Atlantic City Railroad Co. v. Goodin, 62 N. J. Law (33 Vr.) 394; Stevens v. Stevens, 56 N. J. Eq. (11 Dick.) 488. The competency of this testimony cannot be doubted; Maria was one of the parties to the marriage contract concerning which she has testified. Bish. M., D. & S. §§ 1047, 1056.

■ For the reasons stated in Sparks v. Ross, supra, I will advise a decree dismissing the bill.