Clark v. Cassidy

• Decision Date: 28 February 1880
• Citation: 64 Ga. 662
• Parties: Clark.. v. Cassidy, administrator.
• Court: Georgia Supreme Court

64 Ga. 662

Clark.. v. Cassidy, administrator.

Supreme Court of the State of Georgia

(February Term, 1880.)

Divorce. Decree. Judgments. Evidence. Husband and wife. Marriage. Contracts. Charge of Court. Pleadings. Verdict. Practice in the City Court. Before Judge Harden. City Court of Savannah. November Term, 1879.

*Reported in the opinion.

R. R. Richards, for plaintiff in error.

A. P. & S. B. Adams, for defendant.

Crawford, Justice.

A woman who was living with Charles Clark, the plaintiff in error, died, leaving personal property said to be in her own right, and of which he took possession. Cassidy, the defendant in error, who had intermarried with a niece of this woman, by virtue of his wife's relationship, applied for and obtained letters of administration upon the estate of the deceased, and then brought an action of trover against Clark to recover the property fordistribution. The defendant pleaded the general issue, that the property sued for was the defendant\'s, that the property sued for was not the plaintiff\'s nor that of his intestate; that the plaintiff was not administrator upon the intestate\'s estate; that for more than four years defendant has been in possession of the property under a claim of right, and that if plaintiff had cause of action the same was barred.

Upon the trial of the case the jury returned a verdict for the defendant. A new trial was moved for by the plaintiff on numerous grounds named in the record, which was granted by the court, and the defendant excepted. The defendant also requested the court to give certain charges, submitted in writing, to the jury, which were refused, and said refusal has herewith been assigned as error.

We propose to deal with the questions made by this record so as to settle all the points of law arising therein as far as the same may be practicable.

The theory of the plaintiff below was that the woman Mary C. Shaffer or Clark, was an unmarried female, and that at her death her property descended to, and was inherited by, Mrs. Cassidy, the wife of the administrator. The theory of the defense was, that she was the wife of Charles *Clark, the defendant, and that being his wife he inherited from her all her estate. The issue being thus made up, the plaintiff sought to show that Clark and herself were living in a state of illicit intercourse, whilst the defendant endeavored to prove that she was his lawful wife, not by the records of the court of ordinary, but by showing an informal marriage as recognized under the statute laws of Georgia, that is to say, ability to contract, actually contracting, and the consummation of that contract. To this the plaintiff replied, incompetency upon the part of the woman by reason of a former marriage with one John A. Shaffer, who was still in life, to which it was rejoined a divorce a vinculo matrimonii had been decreed.

1. Under the investigation made necessary to establish competency on the part of Mary C. Shaffer a question of law arose as to the legal effect of two verdicts finding sufficient proofs to authorize a total divorce, but upon which no decree carrying out and perfecting the same could be produced. It was ruled when this same case was before us, February Term, 1879, that such decree was necessary to give effect to such verdicts, which ruling we now re-affirm, and hold that without it the bonds of matrimony were not legally dissolved.

2. Upon failure to find a record of such decree its absence was allowed to be supplied by the introduction of parol proof. This testimony having been admitted, it formed the basis of part of the instructions given to the jury and is relied upon as one of the grounds for a new trial.

The proceedings of courts of record are to be ascertained from the minutes kept by the clerks thereof, signed and approved by the judge; and by the recording of all matters judicially con-sidered, and disposed of by the order or judgment of the court. Whatever, therefore, of judgments or decrees of courts of record which do not legally appear do not legally exist. Hence, in thiscase the admission of parol testimony to establish a decree was illegal and should *have been excluded. This would be the rule in courts where the trial was pending in the same court in which the decree was claimed to have been rendered, and with stronger reason should it be rejected in another and different tribunal, as was the case here. Whilst this error would of itself be sufficient to authorize the affirmance of the grant of a new trial, there remain other points upon which the riding of this court is made necessary.

3....