Ely v. Gammel , 52 Ala. 584 ( 1875 )

JUDGE, J.

1. The'city court committed no error in overruling the demurrer to the complaint; for neither one of the grounds thereof assigned was well taken; and neither one is insisted upon by appellant in this court. We deem it unnecessary to notice them in detail.

2. But it is contended that the complaint will not support the judgment rendered, because it does not contain a substantial cause of action, in that it does not .aver that the female named in the license resided in the county in which the license was issued ,• and section 2338 of the Revised Code is relied upon as authority for this position. That section provides that “ no marriage shall be solemnized without a license to be issued by the judge of probate of the county in which the female resides,” &c.; and by section 2342 of the Code, the judge of probate incurs a penalty of five hundred dollars for issuing a license to marry contrary to this or any other provision of the Code relating to that subject. We cannot therefore presume, at the instance of the judge of probate, that he improperly issued the license in this respect; nor can we agree with counsel for the appellant, that the residence of the female in the county in which the license is issued “ is an essential jurisdictional fact without the existence of which the license, if issued, is a nullity.” If improperly issued, the probate judge incurs a penalty for the act; but neither the license nor the marriage which may be solemnized thereunder is void.

If it be necessary to a good complaint in a case like the present, that it should contain an averment that the residence of the female was in the county in which the license was issued, the omission to make the averment could be taken advantage of by demurrer, and if the demurrer should be sustained, the defect might be cured by an amendment. But a trial on the merits, followed by a verdict and judgment in favor of the plaintiff, without objection on account of the omission, would cure the defect; and the complaint containing a substantial cause of action, the judgment would stand. Such is the aspect of the present case.

3. The right of a father to the custody and control of his infant female child, we admit, may, in a proper case, be forfeited by misconduct at the instance of the child, or at the instance of some one moving to that end in behalf of the child. But we are at "a loss to perceive how the misconduct of the father, sought to be proved by his first wife in the present case, could operate as a justification to the probate judge for improperly issuing the marriage license. The father seems to have bestowed upon his daughter proper care and attention, and he had the right to her custody and control, which right had never been forfeited ; and his assent was necessary to the proper issue of the marriage license by the probate judge. The city court, therefore, committed no error in excluding the proposed evidence of the father’s misconduct; it had no proper relevancy to the issue on trial, and the charge given by the court to the jury was also free from error.

The judgment of the city court is affirmed.