Pridgen v. Pridgen

Decision Date23 November 1932
Docket Number340.
Citation166 S.E. 591,203 N.C. 533
PartiesPRIDGEN v. PRIDGEN.
CourtNorth Carolina Supreme Court

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 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. Dowd v. Mary Dowd, of file in this office and of record in the minutes and book of writs of said Court.

"Witness my signature and seal of said Court. This the 21st day of November, 1931.

"[Signed] David Kerr,

"[Seal] Clerk of Superior Court.

"Superior Court, Richmond County."

The Code of Georgia provided as one of the grounds of total divorce the willful and continued desertion by either of the parties for the term of three years.

The defendant offered no evidence, and the jury returned the following verdict:

(1) Is the plaintiff now, and has been, for the two preceding years, a resident of North Carolina, as alleged in the complaint? Answer: Yes.

(2) Was there a contract of marriage between plaintiff and defendant, as alleged? Answer: Yes.

(3) Did the defendant at the time of said contract of marriage then have a living husband by a preceding marriage, as alleged? Answer: No.

With reference to the third issue, the court gave this instruction: "Now, if she had a living husband at the time she entered into the contract with plaintiff, then she could not contract--could not enter into another contract of marriage with him, because it would be bigamous and contrary to law, but if she had been married theretofore and her husband was either dead or there had been a binding decree of divorce, then that left her where she could remarry. The plaintiff himself offers a certified copy of the record in the courts of Georgia, in which a decree of divorce was entered in 1917 between the defendant, who was then Mary B. Dowd, and John A. Dowd, and upon that evidence the court instructs you that at the time of the marriage upon that record, if you believe it, then that she did not have a living husband at the time she entered into the contract in 1923 with the plaintiff and it would be your duty to answer that issue, No."

The plaintiff excepted.

J. W. Barbee, of Durham, for appellant.

B. Ray Olive, M. M. Leggett, and A. G. Johnson, all of Durham, for appellee.

ADAMS J.

For the purpose of showing that the decree of divorce rendered by the court in Georgia is without legal validity in North Carolina, the plaintiff introduced the judgment roll, from which it appears that the defendant in the action was served with constructive and not with personal service of process. If the decree is a nullity here, the plaintiff is not estopped by its introduction, "for what the law pronounces void cannot estop." Gathings v. Williams, 27 N. C, 487, 44 Am. Dec. 49. We must therefore direct our investigation to the legal efficacy in this state of the decree granted by the Georgia court.

Between void and voidable marriages the law recognizes a distinction which applies to the status of the parties before the marriage relation is dissolved. A voidable marriage is valid for all civil purposes until annulled by a competent tribunal in a direct proceeding, but a void marriage is a nullity and may be impeached at any time. Schouler's Marriage, etc., § 1081; Johnson v. Kincade, 37 N.C. 470; Crump v. Morgan, 38 N.C. 91, 40 Am. Dec. 447; Williamson v. Williams, 56 N.C. 446; Taylor v. White, 160 N.C. 38, 75 S.E. 941, L. R. A. 1916C, 704. In Gathings v. Williams, supra, the principle is stated in these words: "Where the marriage is between persons, one of whom has no capacity to contract marriage at all, as where there is a want of age ['want of age' being obiter, Koonce v. Wallace, 52 N.C. 194], or understanding, or a prior marriage still subsisting, the marriage is void absolutely and from the beginning, and may be enquired of in any Court. For, although, in such case there may be a proceeding in the ecclesiastical Court, it is not to dissolve the marriage, but merely, for the convenience of the parties, to find the fact and declare the marriage thereupon to have been void, ab initio; and no civil rights can be acquired under such a marriage. It is said to be no marriage, but a profanation of marriage, and the factum is a nullity."

The General Assembly has provided that all marriages between persons either of whom has a husband or wife living at the time of such marriage shall be void, and that the aggrieved party may seek relief in the superior court, which has succeeded to the functions of the ecclesiastical courts of England. C. S. §§ 1658, 2495; Gathings v. Williams, supra; Johnson v. Kincade, supra; Setzer v. Setzer, 97 N.C 252, 1 S.E. 558, 2 Am. St. Rep. 290; Watters v....

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