GAROUTTE, J., dissenting. It is held in the majority opinion in this case that when alimony and suit money, pendente lite, is prayed for in an action for divorce, the marriage being denied, then upon the'preliminary hearing the fact of marriage must be established by a preponderance of evidence, or the application should be denied. Upon the .final hearing it is onjy necessary to establish the marriage by a preponderance of evidence. Hence, if the conclusion of the court be sound, the result is that in every case where the marriage becomes an issue of fact there can be no such thing as alimony and suit money. For, if the woman is able to establish the marriage by a preponderance of evidence without the money to assist her, she has no need'of the money, and her application should be denied for that reason. If she can establish the fact of marriage upon the preliminary hearing by a preponderance of evidence, without; money, she can as readily establish that fact upon the final hearing without money/ If she be able to establish the fact of marriage by a preponderance of evidence without money, then she need not go to the trouble of establishing that fact until the final hearing. It is thus made plain that the entire reason of the rule, the principle upon which the rule rests, is all gone when it is held that the fact of marriage upon the preliminary hearing must be established by a preponderance of evidence. It may be admitted that the conclusion declared by Justice Temple is supported by persuasive reasons; yet we find no court in this country sustaining the proposition, unless the decision in McKenna v. McKenna, 70 Ill. App. 340, is that case.
In the leading case of Brinkley v. Brinkley, 50 N. Y. 184, 10 Am. Rep. 460, Chief Justice Folger labored hard, but with somewhat indifferent success, to lay down the rule which should guide nisi prius courts in their determination as to when temporary alimony and suit money should be allowed the wife in eases where the marriage is denied. The New York court, in that case, speaking by the mouth of the chief justice, says: “It may be said, too, that for the purpose of an application for temporary alimony there will not need that the fact of mar[403]riage be so conclusively established as for the purpose of permanent alimony, or any other ultimate purpose of the action.” In the same opinion it is also said: “Yet, if the matters contained in other papers or shown by legitimate proofs before the court make out in the judgment of the court a fair presumption of the fact of marriage, it has the power to grant alimony pending the action and expenses of the action.” It is again said in the same case: “The question now before us, however, is not whether, upon the proofs as shown by the parties, a final judgment should be rendered, that there has been an actual valid marriage between the parties, and whether a limited divorce should be adjudged with a permanent separate maintenance for the plaintiff, to be provided by the defendant. The question now is, Do the proofs of the parties give reason to apprehend that upon a trial of the issues between them there is a fair probability that the plaintiff will maintain her allegations?” In Collins v. Collins, 71 N. Y. 274, the same court that decided the Brinkley case declares the Brinkley decision to be “that it was not necessary that the marriage be established as conclusively as would be required for the ultimate purposes of the action, but that the plaintiff must make out a reasonably plain case of the existence of the marriage relation, and she would then be furnished with the means of temporary support, and of conducting the suit until the truth or falsity of her allegations could be ascertained.” In the Collins case the rule is thus declared: “The plaintiff is bound to present a case to the court showing that she has a fair prospect of success in the action, and that she controverts and intends to litigate the matter set up by the defendant, and has reasonable grounds for so doing.” In Vincent v. Vincent, 16 N. Y. Com. Pleas, 534, the court said: “But, as in other preliminary contestations, the fact is not to be established with the clearness and conclusireness exacted of proof as the basis of a final adjudication upon the the rights of the litigant parties; but it suffices if on an application for alimony the putative wife makes out a reasonably plain case of the existence of the marriage relations.” (Citing Brinkley v. Brinkley supra.) In Sharon v. Sharon, 75 Cal. 45, it is said: “In a suit for divorce, when the marriage is denied bj1, the defendant’s answer, three things [404]must be made to appear on application for temporary alimony; the marriage by satisfactory evidence showing at least prima facie a marriage in fact.”
I cite the foregoing authorities to show that the rule of law declared by the majority opinion as to the quantum of evidence necessary to be produced by the wife at the preliminary hearing, to support the fact of marriage, is opposed to the great weight of authority. Yet I am free to say the true solution of the question presents difficulties of no small proportions— difficulties that I am not willing to meet unless necessity demands it, and here I find no such necessity; for, even conceding the rule of law to be as stated by the learned writer of the majority opinion, namely, the marriage must be established by a preponderance of evidence, then under such rule this order should be affirmed.
The reasons for the affirmance of this order are these: Upon the trial of any issue of fact in a civil action it is not for this court to say, upon appeal, that the evidence preponderates in favor of the plaintiff, or that the evidence preponderates in favor of the defendant. This court has nothing to do with the preponderance of evidence. It has so decided times innumerable. It is even a rule universally invoked by this court against the defendant in criminal cases. Under all authority in this state it is for the trial court to say which way the evidence preponderates. And, when that court has so declared, the matter of preponderance of evidence is forever foreclosed from investigation by this court. Treating this proceeding for alimony and suit money with all the dignity of a civil action, conceding that it is to be tried and decided exactly by the same rules of law as any civil action, then the only question here is, Does this record present a substantial conflict in the evidence as to the fact of marriage? And this question is not to be determined by the great number of witnesses upon the one side and the limited number upon the other, for it is often the case that the weaker side in number and in money is the stronger in right. Hence, the fact that the plaintiff is an Indian woman, and her son an illegitimate son, furnishes no reason why this court may cast aside their evidence. Either as matter of law or matter of fact it cannot be said that an In[405]dian woman or an illegitimate son is not to be believed under oath.
Let us pause a moment to look at the evidence. A great portion of it is without substantial conflict, as follows: Hite lived with this woman for twenty-five years. During that time he furnished her with all the necessaries of life. He gave her a house in which to live. He was the father of her child. His sister visited her at this house and slept with her. His nephews visited her at this house, eat at her table, and addressed her as “Aunt Lucy.” He sent her illegitimate son to school, and paid the expenses of his schooling. He treated this son as his own son, and he was always considered and reputed in the neighborhood to be the step-son of defendant Hite. In addition to this uncontradicted evidence we have the testimony of Thomas Gibbs, the illegitimate son, to the effect that the plaintiff is known far and near throughout the southern part of California as the wife of John E. Hite; that defendant has introduced plaintiff as his wife, and held her out to the world as his wife continuously; that defendant’s relatives and friends have associated freely with plaintiff and visited plaintiff as the wife of defendant. We also have the testimony of one Westfall, to the effect that plaintiff and defendant were known in that neighborhood and adjoining counties as husband and wife; that the plaintiff was everywhere called “Mrs. Hite,” and “Lucy Hite, wife of John E. Hite,” and that plaintiff and defendant held themselves out to the world and were always treated as husband and wife. From this condensed statement of the showing made by the plaintiff I feel entirely satisfied in saying that she is entitled to alimony and suit money, in order that she may be able to meet the defendant squarely at the trial of the case upon the issue of marriage or no marriage.
I utterly fail to comprehend how it may be said from the record that the trial judge decided this case upon a wrong theory. There is not a word in the record to indicate it. Hpon the contrary, the fact that the hearing was had after notice to the other side, and that upon such hearing defendant introduced a great mass of evidence to support his claim of no marriage, indicates convincingly to my mind that the trial judge heard and decided the case upon the right theory, and that his conclusion [406]was based upon all the evidence placed before him by both,parties to the litigation.
I think the order should he affirmed.
■¡Rehearing denied.