23 N.W. 110 (Wis. 1885), Williams v. Williams

Citation:23 N.W. 110, 63 Wis. 58
Opinion Judge:CASSODAY, J.
Party Name:WILLIAMS, Appellant, v. WILLIAMS, Respondent
Attorney:Chas. Quarles, of counsel, for the appellant, For the respondent there was a brief by Fish & Dodge, attorneys, and D. S. Wegg, of counsel, and oral argument by Mr. Dodge and Mr. Wegg.
Case Date:April 28, 1885
Court:Supreme Court of Wisconsin
 
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Page 110

23 N.W. 110 (Wis. 1885)

63 Wis. 58

WILLIAMS, Appellant,

v.

WILLIAMS, Respondent

Supreme Court of Wisconsin

April 28, 1885

Argued March 6, 1885.

APPEAL from the Circuit Court for Milwaukee County.

The case is thus stated by Mr. Justice CASSODAY:

This is an action of ejectment, commenced September 7, 1874, by the plaintiff, as the widow of Lewis Williams, Sr., for dower of an undivided one-third of 260 acres of land in Kenosha county, and damages for withholding the same. The answer denies that she was ever such widow, or the wife of the deceased. On the first trial the jury found in favor of the plaintiff, and the judgment entered upon the verdict was reversed by this court for intervening error. 46 Wis. 464.

Upon the cause being remanded, the jury was waived, and the case was tried by the court, which found, in effect, that William Jones married Amelia Rees, April 6, 1860, at Ebber Vale, Wales, Great Britain, but abandoned her in June, 1860, and never returned to or saw her thereafter; that the same William Jones married the plaintiff (then Jane Davis) at Newtown, Wales, June 13, 1864, and cohabited with her as late as 1869 in Kenosha county; that May 9, 1870, the plaintiff married Lewis Williams, Sr., at Racine, Wisconsin; that in October, 1870, the plaintiff, by the name of Jane Jones, commenced an action for divorce against William Jones, upon personal service and verified complaint, on the ground that he had wilfully deserted her in 1868 and had not returned, and obtained judgment of divorce therein, in the circuit court for Kenosha county, in November, 1870; that Lewis Williams, Sr., was seized of the premises in question May 9, 1870, when he was married to the plaintiff, and thereafter conveyed the same to the defendant without the signature of the plaintiff; that Lewis Williams, Sr., died August 25, 1873; that William Jones was divorced from Amelia Rees before he married the plaintiff; that the plaintiff was, May 9, 1870, and until her divorce in November, 1870, the wife of William Jones; that Amelia Rees was living as late as October, 1877; that the plaintiff was not the wife of Lewis Williams, Sr., at the time of his death; that the plaintiff demanded possession of the premises in question before the commencement of this action, which the defendant refused to deliver up.

Upon the findings judgment was rendered against the plaintiff and in favor of the defendant, from which the plaintiff appeals.

Judgment reversed, and cause remanded.

Chas. Quarles, of counsel, for the appellant, argued, among other things, that the judgment of divorce between Jones and the appellant was conclusive only of the fact that they had been divorced, and not of the fact that they had been husband and wife. 2 Bishop on M. & D. § 774; Freeman on Judgm. § 313; 2 Phillips on Ev. (C., H. & E.), *74, *90-94; Melia v. Simmons, 45 Wis. 334, 337; 1 Greenl. on Ev. § 550; Burlen v. Shannon, 3 Gray, 387, 389; Rex v. Gibson, Russ. & R. Cr. Cas. 342, 343n. The doctrine that the law of a foreign country is presumed to be the same as our own, is limited to matters of contract, commercial matters, etc., and general principles of law existing in all Christian countries. 1 Greenl. on Ev. § 488a; Wright v. Delafield, 23 Barb. 498. And this presumption is not indulged as to a law imposing a penalty or working a forfeiture. Hall v. Augustine, 23 Wis. 383; Cutler v. Wright, 22 N.Y. 474; Forbes v. Scannell, 13 Cal. 242; White v. Knapp, 47 Barb. 549. The courts presume that the common law prevails in a foreign state until the contrary is proved. Averett v. Thompson, 15 Ala. 678; Rogers v. Zook, 86 Ind. 237; Meyer v. McCabe, 73 Mo. 236; Hydrick v. Burke, 30 Ark. 124. But they will not take judicial notice of foreign statutes at variance with the common law, nor presume that such statutes exist in common with the state of the forum. 1 Phillips on Ev. *624, n. 11; Savage v. O'Neil, 44 N.Y. 298; Johnson v. Chambers, 12 Ind. 102; Titus v. Scantling, 4 Blackf. 89.

For the respondent there was a brief by Fish & Dodge, attorneys, and D. S. Wegg, of counsel, and oral argument by Mr. Dodge and Mr. Wegg. They contended, inter alia, that upon the marriage of the plaintiff and Jones in 1864, the law would presume that the former wife of Jones was dead or that he had been divorced from her. McCarty v. McCarty, 2 Strobh. 6, 10; King v. Twyning, 2 Barn. & Ald. 386; Harris v. Harris, 8 Bradw. 63; Klein v. Laudman, 29 Mo. 259; Yates v. Houston, 3 Tex., 433; Carroll v. Carroll, 20 id. 731; Smith v. Smith, 1 id. 621; Blanchard v. Lambert, 43 Iowa, 228; Lockhart v. White, 18 Tex. 102; Halbrook v. State, 34 Ark. 511; Myatt v. Myatt, 44 Ill. 473. In the absence of proof the law of a sister state or of a foreign country will be presumed to be the same as that of the forum. Rape v. Heaton, 9 Wis. 328; Jarvis v. Barrett, 14 id. 591; Jones v. Spencer, 15 id. 583; Walsh v. Dart, 12 id. 635; Pierce v. C. & N.W. R. Co. 36 id. 288; Horn v. C. & N.W. R. Co. 38 id. 463; Kellam v. Toms, id. 592; Monroe v. Douglass, 5 N.Y. 447.

OPINION

Page 111

[63 Wis. 61] CASSODAY, J.

Was the marriage between the plaintiff and Lewis Williams, Sr., legal and binding upon the parties at the time it was consummated, on May 9, 1870? The answer to this question must be in the affirmative, unless the plaintiff was at the time the wife of William Jones. If she was at the time the wife of Jones, then she was incapable of entering into the marriage contract with Lewis Williams, Sr. Sec. 2330, R. S. The statute expressly prohibits such second marriage Ibid. It goes further and declares that "if solemnized within this state," as this was, it shall "be absolutely void, without any judgment of divorce or other legal proceeding." Sec. 2349, R. S. Whether the plaintiff was at that time the lawful wife of Jones, depends

Page 112

upon whether the marriage between them in Wales, June 13, 1864, was a legal marriage. It is a verity in the case that four years prior to that marriage Jones had been lawfully married to Amelia Rees, who was then still living, and who continued to live for at least three years after the commencement of this action. It is claimed that the trial court was bound to presume, in the absence of testimony, that the marriage between Jones and Amelia, April 6, 1860, had been dissolved prior to his marriage with the plaintiff. The finding of the trial court to that effect is based entirely upon that presumption. There is no claim or pretense that there is in the record any evidence of any such divorce, except the alleged presumption arising from the fact that Jones married the plaintiff. It is claimed that this alleged rule of presumption is settled by the authorities conclusively, and [63 Wis. 62] beyond all question. Several cases are cited in the brief of counsel in support of this statement. Some of these cases will be considered.

The leading case cited is King v. Twyning, 2 Barn. & Ald. 386. That case is cited in support of several of the other cases cited by counsel, as in Yates v. Houston, 3 Tex. 433; Carroll v. Carroll, 20 Tex. 731; Harris v. Harris, 8 Bradw. 65; Blanchard v. Lambert, 43 Iowa 228. In King v. Twyning the question was whether the pauper, Mary Burns, was then the lawful wife of Francis Burns. It appeared that about seven years before she had married Richard Winter, with whom she lived a few months, when he enlisted as a soldier and went abroad on foreign service, and had never thereafter been heard of. A little more than a year after his departure Mary married Francis Burns, by whom she had children, and with whom she continued to live. In favor of innocence, the court presumed that Winter was dead before Mary married Burns. A person who has not been heard of for seven years is presumed to be dead, but there is no legal presumption that the death occurred at the end of the seven years, nor at any precise time during the seven years. Doe v. Nepean, 5 Barn. & Adol. 86.

In King v. Harborne, 2 Adol. & E. 540, one Henry Smith had married the pauper, Ann Smith, April 11, 1831, and then deserted her. It appeared, also, that he had married Elizabeth Meadows, October 4, 1821, and continued to live with her about four years, when he left her, and she...

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