Hunter v. Hunter
Before: Temple
Synopsis
Annulment of Marriage—Previous Marriage of Defendant—Presumptions— Continuance of Life—Innocence—Legality of Marriage—Divorce—Burden of Proof. —In an action to annul a marriage on the ground of the previous marriage of the woman to another husband, who has not been heard of for four and a half years at the time of the second marriage, in the absence of proof that the first husband was then living, or had not been divorced from the defendant, the presumption in favor of the innocence of the defendant from crime or wrong and of the legality of the second marriage will prevail over the presumption of continuance of life of the first husband; and the burden is cast upon the party asserting her guilt or immorality to prove that the first marriage was not ended by death or divorce before the second marriage.
Id.—Subsequent Divorce of Defendant from First Husband—Conclusiveness of Decree—Status of Defendant.—A decree in an action for a divorce brought by the defendant from her first husband, after having lived twenty-two years with her second husband, in which action the summons was served by publication, is only conclusive that the status of the defendant was no longer that of the wife of the first husband, and is not conclusive as an adjudication that the former husband was then alive, nor that she was his wife when she married the plaintiff.
Id,—Affidavits of Defendant—Evidence—Estoppel Affidavits made by the defendant in her proceedings for divorce, and in a subsequent action brought by her to annul the first marriage, which was dismissed, stating upon the strength of rumors heard by her that her first husband was then living, and that he was living at the time of her second marriage, and that she had not then been divorced from him, though strong evidence against her, do not create an estoppel, nor preclude the court from finding that there was no authentic information that the first husband was alive at the time of the second marriage, upon explanatory evidence satisfying the court of that fact.
Id.—Appeal ebom Judgment—Dismissal—Review of Alimony.—Where an appeal from a judgment refusing to annul the marriage of plaintiff with defendant, was taken too late, it must be dismissed; and in such case, objection to the allowance of alimony to the defendant can not be considered.
The appeal from the judgment was too late, and should be dismissed; and the question of alimony cannot be considered on motion for new trial. It is to be presumed that the first husband died prior to the second marriage. (Johnson v. Johnson, 114 Ill. 616; 55 Am. Rep. 883; 1 Bishop on Marriage and Divorce, sees. 452-56.) The presumption in favor of innocence and I the legality of the marriage between plaintiff and defendant should prevail; and the burden is with the party objecting to its validity to prove that it is not valid. (1 Bishop on Marriage and Divorce, secs. 457, 458, 949-54; Rex v. Twyning, 2 Barn. & Aid. 386; Yates v. Houston, 3 Tex. 449; Dixon v. People, 18 Mich. 84; Senser v. Bower, 1 Pa.450; Hull v. Rawls, 27 Miss. 471; Chapman v. Cooper, 5 Rich. 452; Boulden v. McIntire, 119 Ind. 574; 12 Am. St. Rep. 453; Le Brun v. Le Brun, 55 Md. 496; Carroll v. Carroll, 20 Tex. 731; Lockhart v. White, 18 Tex. 102; The King v. Inhabitants, 2 Barn. & Aid. 386.) The declarations of the defendant are not ground for the annulment of her marriage with plaintiff, and are not conclusive that she had another husband living at the time. (Le Brun v. Le Brun, supra; Gainer v. Relf, 12 How. 472, 534; Montgomery v. Montgomery, 3 Barb. Ch. 132; Clayton v. Wardell, 5 Barb. 214; Jones v. Jones, 48 Md. 391; 30 Am. Rep. 466; Cope v. Cope, 5 Car. & P. 604, Myatt v. Myatt, 44 Ill. 473; note to Richardson v. Richardson, 30 Am. Dec. 544.) The decree of divorce from Milam was not res adjudicata that the defendant was not the lawful wife of plaintiff. (Williams v. Williams, 63 Wis. 58; Boulden v. McIntire, supra.) Cohabitation between plaintiff and defendant having continued after the decree of divorce was obtained, and any pos= sible impediment being thus removed, the relation grew into one of true and valid marriage. (1 Bishop on Marriage and Divorce, secs. 345, 955, 961, 970, 975; Blanchard v. Lambert, 43 Iowa, 228; 22 Am. Rep. 245; State v. Worthingham, 23 Minn. 528, 536; Cole v. Cole, 5 Sneed, 57; 70 Am. Dec. 275; Fenton v. Reed, 4 Johns. 52; 4 Am. Dec. 244; Rose v. Clark, 8 Paige, 574; Donnelly v. Donnelly, 8 B. Mon. (Ky.) 113; Teter v. Teter, 88 Ind. 494; Smith v. Smith, 1 Tex. 621, 632, 633; 46 Am. Dec. 121; Yates v. Houston, supra; Lee v. Smith, 18 Tex. 145.)
Temple, J. The action was brought to annul a marriage between the parties entered into on the third day Of July, 1862, upon the ground that defendant had another husband to wit, Joseph Milam.
[264]It is now conceded that defendant was married to Joseph Milam in February, 1858, when defendant was but fifteen years of age; that she lived with Milam as his wife for ten days, when she was taken away by her parents and went to Salt Lake. It does not appear how long she was absent from San Bernardino, but it could not have been a very long time, for she testified that she lived at San Bernardino after her marriage to Milam about four and one-half years, when she married plaintiff. Only about that period elapsed between her first and second marriage. She testified that Milam left a few days after her marriage to him and she had heard nothing of him since. Plaintiff and defendant lived together as husband and wife at Los Angeles for about twenty-two years, when, as defendant testified, she was told by her nephew, who lived in Arizona, that he had met a brother of Joseph Milam who said Joseph Milam was living at Walla Walla. This is all she has ever heard in regard to Milam since he left San Bernardino. She then commenced an action against Joseph Milam to secure a divorce. In her verified complaint, filed December 21, 1883, she describes herself as Jane Elizabeth Milam, and states that plaintiff and defendant were married in February, 1858, and ever since have been and now are husband and wife, and that defendant resides out of the state of California.
On the same day she made and presented to the court her affidavit, to procure the publication of summons, in which she stated that defendant resides out of the state, that his last residence within the state was in Pajaro, in Santa Cruz county, that through knowledge derived from his brother she believes he resides at Walla Walla in Washington territory.
Such proceedings were had in the action that on the twenty-ninth day of March, 1894, a decree was entered dissolving the marriage between Joseph Milam and the defendant plaintiff in that action.
Certain findings were also filed, and purport to constitute part of the judgment-roll; but, as there were no [265]
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