166 S.E. 591 (N.C. 1932), 340, Pridgen v. Pridgen

Docket Nº:340.
Citation:166 S.E. 591, 203 N.C. 533
Opinion Judge:ADAMS, J.
Party Name:PRIDGEN v. PRIDGEN.
Attorney:J. W. Barbee, of Durham, for appellant. B. Ray Olive, M. M. Leggett, and A. G. Johnson, all of Durham, for appellee.
Case Date:November 23, 1932
Court:Supreme Court of North Carolina
 
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Page 591

166 S.E. 591 (N.C. 1932)

203 N.C. 533

PRIDGEN

v.

PRIDGEN.

No. 340.

Supreme Court of North Carolina

November 23, 1932

Appeal from Superior Court, Durham County; Barnhill, Judge.

Action by J. J. Pridgen against Mary Pridgen. From an adverse judgment, plaintiff appeals.

Error.

"Voidable marriage" is valid for all civil purposes until annulled in direct proceedings, but "void marriage" is nullity and may be impeached at any time.

This is an action to annul a pretended marriage between the plaintiff and the defendant on the ground that the defendant had a living husband by a preceding marriage at the time the ceremony between the plaintiff and the defendant was celebrated.

The material facts are as follows: The parties to this action are residents of North Carolina, the defendant all her life having resided in Durham county. They were married in Halifax county in 1921 or 1923. The plaintiff was a widower. The defendant admits that at the time she married the plaintiff her first husband, John A. Dowd, was living, and that he is now a resident of North Carolina. In her answer she alleged that prior to her intermarriage with the plaintiff she and her former husband had been divorced, and, for the purpose of showing that the decree is invalid in this state, the plaintiff introduced without objection the following record and judgment roll of a civil action prosecuted in the county of Richmond, state of Georgia, entitled "John A. Down v. Mary Dowd."

"State of Georgia, Richmond County:

"To the Superior Court of said County:

"The petition of John A. Dowd, of said County, shows:

"1. That in the year 1907 plaintiff and Mary Cheek intermarried in due form of law, and petitioner and defendant have been ever since and now are man and wife.

"2. Petitioner has been a bona fide resident of the State of Georgia for 12 months before the filing of this application for divorce.

"3. That on May 1st, 1913, his said wife deserted him, petitioner, without any cause on his part; that said desertion was willful and has been continuous up to the present time.

"4. That his said wife, Mary Dowd, is a non-resident of the State of Georgia, and her present address is unknown to petitioner.

"5. Wherefore, Petitioner prays that process may issue directed to the defendant directing and requiring her to be and appear at the next term of this Court to be held in and for said County to answer your petitioner's libel for total divorce.

"Henry C. Roney,

"Attorney for Petitioner.

"(Filed in office, this the 25th day of May, 1916).

"John A. Dowd vs. Mary Dowd

"Richmond Superior Court, July Term, 1916.

"Libel for Divorce.

"It appearing from the petition that the defendant in the above stated case, Mary Dowd, is a non-resident of the State of Georgia;

"Ordered, that service be perfected on the defendant by publication in the Augusta Herald, a public gazette of said County in which legal advertisements are published; twice

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a month for two months, before the next term of this Court. This the 25th day of May, 1916.

"Henry C. Hammond, J. S. C. A. C.

"State of Georgia, Richmond County.

"John A. Dowd v. Mary Dowd

"Libel for Divorce in Richmond Superior Court, July Term, 1916.

"To the defendant, Mary Dowd: You are hereby required in person or by attorney to be and appear at the Superior Court next to be held in and for the County aforesaid in the third Monday in July, 1916, then and there to answer the plaintiff in action for libel for divorce. In default of said appearance said Court will proceed thereon as to justice may appertain.

"Witness The Honorable Henry C. Hammond, Judge of the said Court.

"This 25th day of May, 1916.

"Daniel Kerr, Clerk.

"John A. Dowd v. Mary Dowd

"Richmond Superior Court, July Term, 1916.

"Libel for Divorce.

"I do hereby certify that notice in the above entitled action was advertised in the Augusta Herald, the legal medium for advertisement in Richmond County, once a week for four weeks, to-wit: May 26th and 30th, 1916, and June 7th and 12th, 1916.

"R. E. Cothran

"Of the Augusta Herald.

"It appearing that advertisement has been made in the Augusta Herald once a week for four weeks of the above stated case, it is hereby ordered that due and legal service has been made and perfected upon defendant as required by law.

"October 31st, 1916.

"Henry C. Hammond, J. S. C. A. C.

"John A. Dowd v. Mary Dowd

"Richmond Superior Court, July Term, 1916.

"Libel for Divorce.

"Judgment

"Two concurring verdicts having been rendered in this case granting a divorce a vinculo matrimonii between the parties upon legal principles, it is there; considered and adjudged by the Court that the marriage contract made and entered into between the parties in this case be, and the same is hereby, declared to be set aside and dissolved as fully and effectually as if no such contract had ever been made and entered into and that both parties may re-marry.

"Ordered further that defendant pay the costs of these proceedings.

"This 27th day of January, 1917.

"Henry C. Hammond, J. S. C. A. C.

"State of Georgia, Richmond County.

"Clerk's Office Superior Court.

"I, Daniel Kerr, Clerk of Superior Court of said County, certify that the foregoing five typewritten pages contain a true copy of the record In Re: John A...

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