52 So. 360 (Miss. 1910), 14256, Sullivan v. Grand Lodge Knights of Pythias of Mississippi

Docket Nº:14256
Citation:52 So. 360, 97 Miss. 218
Opinion Judge:SMITH, J.
Party Name:EMMA SULLIVAN v. GRAND LODGE KNIGHTS OF PYTHIAS OF MISSISSIPPI
Attorney:McKnight & McKnight, for appellant. N. Vick Robbins, for appellee, Mary Davis. Argued orally by Theodore McKnight, for appellant, and by N. Vick Robbins, for appellee.
Case Date:May 23, 1910
Court:Supreme Court of Mississippi
 
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Page 360

52 So. 360 (Miss. 1910)

97 Miss. 218

EMMA SULLIVAN

v.

GRAND LODGE KNIGHTS OF PYTHIAS OF MISSISSIPPI

No. 14256

Supreme Court of Mississippi

May 23, 1910

FROM the circuit court of Warren county, HON. JOHN N. BUSH, Judge.

Mrs. Sullivan, appellant, was plaintiff in the court below; the Grand Lodge Knights of Pythias of Mississippi, appellee, was defendant there. Mary Davis was interpleaded by the defendant. From a judgment awarding to Mary Davis the money brought into court by defendant, the plaintiff appealed to the supreme court. The facts are fully stated in the opinion of the court.

Affirmed.

McKnight & McKnight, for appellant.

The peremptory instruction asked by the plaintiff, Emma Sullivan, and refused by the court, should have been given: (a) because plaintiff made out a case entitling her to recover; (b) because the case made out by plaintiff was not overcome by the proof in favor of the defendant; (c) because the burden was upon defendant to overthrow both the proof made by plaintiff that her intestate was the wife and sole heir of Jacob Davis, deceased, and the presumption of law in favor of marriage which surrounds said marriage; (d) because the appellee failed in her attack upon the right of appellant to recover on the policy sued on; (e) because the proof of record shows that the appellee was, by reason of a prior and existing marriage with one Brown Hunter, incapacitated to enter into the marriage contract at the time of her alleged marriage with some Jake Davis in the fall of 1892; (f) because appellee utterly failed to show that she was ever married to or even ever saw the Jacob Davis who died the holder of the policy sued on.

A marriage prior to 1892 having been shown and admitted between appellee and one Brown Hunter, and there being no pretense that Brown Hunter was dead or divorced from appellee before the alleged marriage between appellee and some Jacob Davis in 1892, it follows that the court below erred in refusing the second instruction asked by plaintiff.

Even if the very meagre testimony of the appellee (who alone testified upon the subject) could or should be strained to amount to the semblance of proof that Brown Hunter is dead at all, it certainly was not entitled to that dignity as proof which would preclude a dispute as to whether Brown Hunter was alive at the time of appellee's alleged marriage to some Jacob Davis in 1892, yet this is the practical effect of the refusal of the second instruction asked by appellant and refused by the court below.

While the learned gentleman who sat as judge in this case in the court below freely instructed the jury that Mary Davis, the apppellee, must show that she was lawfully married to Jacob Davis, yet no critical reading of the record is necessary to see that by "lawfully married" he meant married by license regardless of her capacity or incapacity to marry, and persistently...

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