164 P. 463 (Okla. 1917), 8750, Jones v. Jones

Docket Nº:8750.
Citation:164 P. 463, 63 Okla. 208, 1917 OK 182
Opinion Judge:HARDY, J.
Party Name:JONES v. JONES.
Attorney:Blake & Hazlett, of Tulsa, for plaintiff in error. T. L. Blakemore, of Sapulpa, for defendant in error.
Case Date:April 10, 1917
Court:Supreme Court of Oklahoma
 
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Page 463

164 P. 463 (Okla. 1917)

63 Okla. 208, 1917 OK 182

JONES

v.

JONES.

No. 8750.

Supreme Court of Oklahoma

April 10, 1917

Syllabus by the Court.

Where the original cross-petition in error, assigned as error the action of the court in overruling plaintiff's motion for a new trial, which motion contained as one of the grounds therefor that "the judgment of the trial court in finding the marriage between plaintiff and defendant was illegal and void is not sustained by sufficient evidence and is contrary to law," the petition in error may be amended after the expiration of the time in which such cross-appeal must be filed by adding an assignment that "the judgment of the court in finding the marriage between plaintiff and defendant illegal and void is not supported by sufficient evidence and is contrary to law.

The burden is upon the person who asserts the illegality of a marriage to prove such illegality, and, where a second marriage is shown as a fact, a strong presumption exists in favor of its legality, which is not overcome by mere proof of a prior marriage and that the wife had not obtained a divorce before her second marriage. The party attacking such second marriage has the burden of showing that neither party to the first marriage had obtained a divorce.

Section 4966, Rev. Laws 1910, authorizes the court, in any case where a divorce is refused, to make such order as may be proper, equitable, and just for the disposition and division of the property of the parties or either of them, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.

Error from District Court, Creek County; Ernest B. Hughes, Judge.

Action by Lulu Jones against Jason Jones for a divorce and alimony, in which defendant filed an answer and cross-petition. Petition dismissed, and marriage between the parties annulled, and a division of the property decreed between the parties, and from the decree of division defendant appeals, and from that, and from the dismissal of the petition and the annulment of the marriage, plaintiff brings error. Decree annulling the marriage contract reversed, and in all other things affirmed.

Blake & Hazlett, of Tulsa, for plaintiff in error.

T. L. Blakemore, of Sapulpa, for defendant in error.

HARDY, J.

Lulu Jones, as plaintiff, commenced this action against Jason Jones, as defendant, for a divorce and alimony. Defendant filed answer and cross-petition, in which he denied the allegations of plaintiff's petition, and, in addition to other matters, alleged that, at the time of the marriage between plaintiff and defendant, plaintiff was the lawful wife of one Lewis Morgan, and prayed an annulment of the pretended marriage between the parties on that ground. Upon a trial, the court found that plaintiff's prayer for divorce should be denied and dismissed her petition, and further found that the marriage between the parties was illegal and void because of plaintiff's prior marriage with said Morgan, and annulled and canceled the same and decreed a division of the property accumulated between the parties. From the decree dividing the property, defendant prosecutes an appeal, and plaintiff appeals from the decree denying her prayer for divorce and declaring the marriage contract null and void, and also appeals from the decree dividing the property.

In her original cross-petition in error, plaintiff assigned, among other things, that the court erred in overruling her motion for a new trial. On January 20, 1917, she filed an amended petition in error, in which, by way of amendment to her original petition, it was assigned that the court erred in finding that the marriage of the plaintiff in error and defendant in error was illegal and void, and that said finding...

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