Pridgen v. Pridgen
Decision Date | 23 November 1932 |
Docket Number | 340. |
Citation | 166 S.E. 591,203 N.C. 533 |
Parties | PRIDGEN v. PRIDGEN. |
Court | North 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."
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:
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.
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:
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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