111 Cal. 261, 19555, Hunter v. Hunter

Docket Nº:19555
Citation:111 Cal. 261, 43 P. 756
Opinion Judge:TEMPLE, Judge
Party Name:JESSE HUNTER, Appellant, v. JANE ELIZABETH HUNTER, or MILAM, Respondent
Attorney:Knight, Simpson & Harpham, for Appellants. S. A. W. Carver, for Respondents.
Judge Panel:JUDGES: In Bank. Temple, J. McFarland, J., Van Fleet, J., Harrison, J., Garoutte, J., and Henshaw, J., concurred.
Case Date:February 15, 1896
Court:Supreme Court of California

Page 261

111 Cal. 261

43 P. 756

JESSE HUNTER, Appellant,



No. 19555

Supreme Court of California

February 15, 1896

Page 262

Appeal from a judgment of the Superior Court of Los Angeles County and from an order denying a new trial. J. W. McKinley, Judge.


Knight, Simpson & Harpham, for Appellants.

The status of marriage being proved it is presumed to continue until death or divorce, in the absence of proof to the contrary. (People v. Stokes , 71 Cal. 266-7.) The defendant cannot impeach the judgment of divorce obtained by her against Milam which adjudicated that he was then alive. (Elliott v. Wohlfrom , 55 Cal. 384; Roth v. Roth , 104 Ill. 35; Yaple v. Titus , 41 Pa. St. 195; 80 Am. Dec. 604; Knott v. Taylor , 99 N.C. 511; 6 Am. St. Rep. 547; Mitchell v. Schoonover , 16 Or. 211; 8 Am. St. Rep. 282; Mills v. Alexander, 21 Tex. 159; Thouvenin v. Rodrigues, 24 Tex. 468; Gould v. Crow , 57 Mo. 200.) The court could not allow counsel fees to the defendant as alimony in an action to annul a marriage, and the conclusion of law that defendant should have judgment for counsel fees is a decision against law and a new trial should be granted therefor. (Heinlen v. Heilbron , 71 Cal. 564; Simmons v. Hamilton , 56 Cal. 496; Lothian v. Wood , 55 Cal. 164.)

S. A. W. Carver, for Respondents.

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, secs. 452-56.) The presumption in favor of innocence and 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. & Ald. 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. & Ald. 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 possible 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.)

JUDGES: In Bank. Temple, J. McFarland, J., Van Fleet, J., Harrison, J., Garoutte, J., and Henshaw, J., concurred.



Page 263

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.

Page 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

Page 265

issues to try and judgment was entered on default, express findings were unauthorized and add nothing to the necessary adjudication.

Subsequently defendant commenced an action against the plaintiff to have her marriage with him declared void on the same ground on which plaintiff now seeks relief, to wit: That at the time of her marriage with him her first husband, Joseph Milam, was living and she had not been divorced from him. The complaint in that suit was also verified. The action was finally dismissed by her before it came to judgment.

Two of plaintiff's brothers testified that, at the time the parties to this action were married, they heard travelers say the man defendant married was still living there (San Bernardino). It is, however, pretty certain that he was not then living at San Bernardino. This is all the evidence contained in the record upon this subject.

It is contended: 1. That the judgment in the divorce suit is conclusive upon defendant that she was divorced from Milam. That is, that Milam was then alive, and that until the decree was...

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