Orange County NcArchives Court.....Eliza Powers Et Al, John Hopkins Et Al V. 1892
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Source: N C Reports
Written: 1892

John Hopkins et al v. Eliza Powers et al

Evidence - Marriage - Trial - Demurrer - Judgment, Conditional

1. Upon the trial of an issue involving the validity of a marriage, it was not 
error to admit evidence that the wife was reputed to be of mixed blood within 
the prohibited degrees, or to permit the witness to state his opinion on that 
point, although not an expert. It was also competent in corroboration of other 
evidence tending to prove the taint of blood, to show that the wife usually 
associated with colored people.

2. If a party demurs to the evidence introduced by his adversary, he admits 
the truth of it with such inferences as may be reasonably drawn therefrom.

3. An alleged widow who is a party to an action by the heirs at law of the 
husband is not competent to prove the fact of marriage, or that she lived with 
him as man and wife, when the marriage is in issue.

4. When the Judge signed a judgment, but directed the Clerk to strike it out 
if a bond was filed within five days: Held, the condition was invalid, and the 
judgment was regular and would be enforced.

Civil Action, tried at August Term, 1892, of Orange Superior Court, Connor, 
J., presiding.

The action was brought to recover a tract of land. Both parties claimed under 
Nash Booth, the plaintiffs as the heirs at law of their mother, a sister of 
Booth, and the defendants as his children and heirs at law. The case turned 
upon the validity of the marriage of Nash Booth and Anne Booth, the mother of 
the defendants, who was alleged to have been of mixed blood within the 
prohibited degree, Booth being a white man. Much testimony was offered by both 
parties on this point. The defendant introduced a certified copy of the 
records of Wake County, showing a license for the marriage, and the 
certificate thereof of the solemnization of the marriage rite by a person duly 
qualified, and proposed to show by the testimony of the alleged wife that the 
ceremony was in fact performed, and that she lived with her reputed husband as 
his wife. This testimony of the wife was, upon objection, excluded and 
defendants excepted.

The plaintiffs, against the objection of defendants, were allowed to introduce 
evidence of persons who swore that they knew Anne; that, in their opinion, she 
was mixed blood; that she was so reputed to be, and that she usually 
associated with colored people.

After verdict the defendant moved the Court to set it aside for that it was 
against the weight of the evidence. After much consideration, and just as the 
Court was about to adjourn on Saturday, the defendants' counsel, in reply to 
an inquiry, stated to the Court, that the defendants were defending without 
having filed any bond, having complied with the law in that respect, but if 
the Court would grant them a new trial, they would file a bond with security 
for all of the cost that might accrue from that time, and for such rents as 
might be found due upon a final hearing. The Court stated that while it was 
not prepared to say that the verdict was against the weight of the evidence, 
yet the cause was a great hardship against the defendants, and the counsel 
expressed so much confidence in his ability to show that the defendants were 
entitled to a verdict, and as no great harm could come from giving them 
another chance, and feeling that possibly injustice had been done the infant 
defendants, consented to set the verdict aside, upon condition that the bond 
was filed within five days. The plaintiffs' counsel were present during the 
discussion of the matter, and objecting to any interference with the verdict. 
The Judge signed the judgment and handed it to the Clerk, directing that it be 
held by him and not filed for five days, and if the bond was filed as above 
set forth, the Clerk should enter the order setting aside the verdict, 
otherwise the judgment would be filed. To this suggestion of the Judge, the 
counsel for the plaintiffs made no response - neither assented to nor 
dissented from the manner of procedure. The Judge handed the judgment to the 
Clerk with the direction as above set forth, and the Court adjourned for the 
term. On Monday following the adjournment the plaintiffs' counsel notified the 
counsel for defendants that he would insist upon the judgment signed and that 
it must be recorded by the Clerk, and no new trial could be granted by him as 
the Court could not delegate its judicial functions to the Clerk so that he 
may set aside a judgment upon the performance of a condition, and that this 
notice was given in time so that there might be no misunderstanding, and the 
defendant's counsel might appeal if he desired so to do. On the 18th of August 
notice of appeal was received by counsel for plaintiffs, and on the 22d of 
August case on appeal was served on plaintiff's counsel. On the 16th day of 
August, being less than five days after Court adjourned, the defendants' 
counsel filed the bonds as directed by the Court, and requested the Clerk to 
make the entries, which he declined to do.

The other facts necessary to an understanding of the opinion will be found 
therein.

There was a verdict for plaintiffs, and from a judgment thereon defendants 
appealed.

J. W. Graham for plaintiffs
C. D. Turner for defendants

NC Supreme Court Justice Clark, J. - The issues as submitted were sufficient 
and there is no ground to support the exception for refusing to submit those 
tendered by the appellants. Humphrey v. Church, 109 NC 132, and cases there 
cited.

The plaintiff rested his case upon the invalidity ab initio of the alleged 
marriage between Nash Booth and Anne Bowers (or Booth), one of the defendants 
under the provisions of The Code, #1084, 1284, and 1810; Const., Art. 14, #8. 
Judge made a verbal conditional order to the Clerk in favor of appellants to 
set aside the judgment and verdict if a bond was filed in five days. This was 
conditional and of no effect. The Judge could not thus delegate his authority 
to the Clerk. We are at a loss to understand how the invalid order in favor of 
the defendants could impeach the valid judgment in favor of the plaintiffs. In 
Strickland v. Cox, supra, the judgment signed in favor of the plaintiffs was 
conditional "to be stricken out if," etc., and hence invalid. Here, it is the 
order setting aside the verdict and judgment "if bond is filed," which is 
conditional, and hence void. The direction not to docket pending the 
conditional order was simply a nullity. The Court did not set aside the 
verdict and judgment, and distinctly stated that it could not say that the 
verdict was against the weight of the evidence. The sympathy evinced by his 
Honor for the infant defendants was creditable to his sensibilities, but the 
practice attempted by him has been often ruled invalid, and could only result 
in adding to the complications of the litigation, with benefit to no one.

No Error

Additional Comments:
In the NC Supreme Court September Term 1892

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