Cross v. Cross

• Decision Date: 19 November 1884
• Citation: 21 N.W. 309,55 Mich. 280
• Court: Michigan Supreme Court
• Parties: CROSS v. CROSS.

21 N.W. 309

55 Mich. 280

CROSS v. CROSS.

Supreme Court of Michigan

November 19, 1884

Appeal from the superior court of Detroit.

Geo. W Bates, for complainant.

Otto Kirchner, for defendant, appellant.

CAMPBELL J.

Complainant having filed a bill of divorce alleging marriage, and various acts relied on as statutory grounds of cruelty, and abandonment without provision, defendant put in a plea denying the marriage, and issue being joined on this complainant prevailed, and the case was ordered to proceed to answers. Defendant appeals. The bill avers a regular marriage in Sandwich, Ontario, on May 17, 1881, both parties living in the township of Springwells, near Detroit; and a reason for marriage in Canada being stated to be a desire to keep it from the knowledge of defendant's family. It is set out that they at once assumed and continued marital relations first in his house, then in her father's house in Springwells and in the town of Van Buren, and lastly, from the fall of 1882 until some time in March, 1883, on Spruce street, in the city of Detroit, where they kept house until he abandoned her. It also avers the birth of a son in the spring of 1882, and that at the Spruce-street house she was induced, for the purpose of concealment before mentioned, to assume the name of McDonald, although informing other people that Cross was her husband. The bill finally sets up attempts by defendant to induce complainant to give the child away and afterwards to get her to charge the paternity upon a gentleman in Belleville, which was finally done by a paper which she was deceived into signing by the effect of wine and of misrepresentation as to its contents, but which she repudiated when discovered.

The plea being a denial of an essential part of complainant's case, the burden was on her to prove the marriage to the satisfaction of the court, in accordance with the allegations. The testimony was all taken before a commissioner, and both parties were sworn, complainant's personal testimony being objected to as unwarranted, but no objection being taken to defendant's. No testimony was taken in open court. As complainant comes before the court asserting herself to be a married woman, and was sworn without defendant's consent, she was within the prohibition of Comp.Laws, � 4772, of the divorce laws as amended in 1883, (How.St. � 6260,) which declares that parties shall only be examined in open court. If not married she has no case, and she cannot be sworn under claim of being married, in violation of the statute. Defendant's testimony is not objected to, and could not be ruled out on this preliminary question without deciding it against him. Any admission made by either would stand on a separate ground. No marriage certificate is shown, and no proof was made of the Canadian marriage, either by the persons said to have been present at it, or by documentary evidence from the officer, or from any Canadian record. No mention is made of the name of the magistrate or of the witness, and no difficulty seems to be alleged and none definitely proved as to getting direct proof, if it existed. The laws of Canada have not been proved to show whether a justice could marry parties there. The bill does not purport to rely on any but a valid Canadian marriage. She claims to have been engaged a year, but no proof except hers is introduced to show it.

If we could look at complainant's testimony, it shows no more than the appearance of the parties before a respectably appearing man called a justice, and a witness, with no mention of their names, or other means of identification, and no tangible reason why such names cannot be given, and no statement why, if unknown, they were not learned. This would be very unsatisfactory evidence in any case; but, leaving it out, there is no proof at all of the Canadian marriage, or of any definite marriage at any ascertained time or place. Reliance is, however, had--although such is not the theory of the bill--on a common-law marriage by consent and matrimonial conduct, and this is sought to be proved by acts, repute, and admissions. If any such marriage existed, it is still claimed to have been at the time mentioned in the bill, and there is no attempted proof of any other. All the alleged acts and admissions are made significant only as retrospective.

This makes it proper to consider the surroundings. Previous to the spring of 1881 defendant was keeping house over his butcher shop, with several children, mostly grown up, or nearly so, including a son and various daughters. There is some not very clear testimony about a housekeeper who had some peculiar difficulty with him, either before or afterwards, or both, but who was not in the house during complainant's sojourn. Defendant was a dealer in cattle and meat. Complainant came into his house and employ in some capacity, apparently as housekeeper, early in the year, and in the lodging arrangements complainant lodged with the daughters, defendant had a room by himself, and his son and a hired man another. This arrangement continued precisely after as before the alleged marriage, so long as complainant remained in the house, which was until September. Her parents lived quite near, and had a large family, housed about as closely in a few rooms as defendant's inmates.

There is no testimony but complainant's which has any tendency to show that during this period, from the alleged marriage to the return to her father's, complainant and defendant had any marital relations whatever, or were supposed to have. According to the theory of the bill the marriage was to be kept from the family, and any publicity would prevent this. But if complainant's story is to be looked into, it indicates that there were acts not seriously sought to be concealed which would indicate the reverse of honest relations to any one not informed of a marriage, with no question or allusion on the part of daughters whose character is not impugned on the record. Without other proof of marriage these relations do not lead to evidence of it. In September complainant left her alleged husband's house and went back to her father's. The reason she gives is a dispute with defendant's son, not quite grown up, about the pay of her brother for wages. That a wife should leave her husband's house on any such account, with no grievance against her husband, and no assertion of wifely character, is not a natural course, and this is a circumstance bearing against any inference of marriage from conduct and surroundings, unless explained and aided by more definite proofs. Defendant's claim is that she never was in his house except as in service, and that she left because her employment was terminated.

All the remaining testimony for complainant is made up of conduct of defendant and repute. From September, 1881, she lived at her father's, a few rods distant, and in March her father and his family went back to Van Buren, where they had formerly lived, and she went with them, and remained till November 1882. A child was born to complainant in April, 1882, seven months or thereabouts after she le...