Andrews v. Andrews, 35589

• Decision Date: 17 March 1955
• Docket Number: No. 35589,No. 2,35589,2
• Citation: 86 S.E.2d 669,91 Ga.App. 659
• Parties: Johnnie ANDREWS, alias Johnie A. Hunter, v. J. E. ANDREWS
• Court: Georgia Court of Appeals

Page 669

86 S.E.2d 669

91 Ga.App. 659

Johnnie ANDREWS, alias Johnie A. Hunter, v. J. E. ANDREWS.

No. 35589.

Court of Appeals of Georgia, Division No. 2.

March 17, 1955.

Syllabus by the Court.

1. An assignment of error by direct bill of exceptions on the refusal to grant a nonsuit will fail where there is a verdict for the plaintiff and the evidence subsequently introduced in the case cured the deficiency.

2. There was, in this action to annul a second marriage on the ground of the defendant's prior undissolved marriage to another, ample evidence to authorize the finding that the first marriage was valid and undissolved.

3. (a) Where the plaintiff offered proof of facts showing that the first marriage was valid, and had never been dissolved by death or divorce, it was not necessary, in order to avoid a nonsuit, to show further that such marriage had not been dissolved by annulment. An annulment under the facts of this case would have been impossible since the passage of the law authorizing such action, Code, 1954 Supp., § 53-6, and the action was never previously thereto sanctioned by the appellate courts of this state.

(b) Where the law of another State comprising one of the thirteen original colonies or a territory belonging thereto is not offered in evidence, it will be presumed that it is the common law is interpreted by the courts of this State.

James Edward Andrews filed an action for annulment, in the Superior Court of Cobb County, alleging that he had entered into a marriage ceremony with the defendant, Johnnie Arnold Hunter in February, 1946; that, on August 13, 1953, he discovered that the purported marriage was void because the defendant was in fact the lawful wife of Robert Hunter, having entered into a marriage ceremony with him in 1927, lived with him and borne him a child; that this marriage was never dissolved by divorce or annulment, and said Robert Hunter is still in life; that the defendant, when she married Hunter, was at least 14 years of age, but if not 14 years of age, then she lived with Hunter after attaining the age of 14 years and accordingly ratified her marriage to him. Upon the trial of the case, the defendant moved for a nonsuit at the close of the plaintiff's evidence; this motion was denied, and the case proceeded with a verdict in favor of the plaintiff. The defendant, by direct bill of exceptions, assigns error on the denial of the motion for nonsuit.

Howell C. Ravan, Marietta, for plaintiff in error.

Frank A. Bowers, Atlanta, for defendant in error.

TOWNSEND, Judge.

1. Error may be assigned by direct bill of exceptions on the refusal to grant a nonsuit. Ocean Steamship Co. v. McDuffie, 6 Ga.App. 671(1-a), 65 S.E. 703. However, any error in denying such motion is cured if the defendant thereafter introduces evidence by which the deficiency in the plaintiff's evidence is supplied. Southern Ry. Co. v. Morrison, 8 Ga.App. 647(2), 70 S.E. 91. Accordingly, where there has been a verdict for the plaintiff, the evidence as a whole must be examined in order to determine whether or not the plaintiff proved his case as laid, or, if not, whether the record later supplies the deficiency.

2. The defense in this case was predicated on the theory that the defendant, Johnie Arnold Hunter, never entered into a valid marital relationship with her first husband, Robert Hunter, for the reason that she was both married and separated from him before she reached the age of 14 years. The defendant introduced a 'delayed birth certificate,' procured after this action was commenced, showing her birth date as January 10, 1915. She and Hunter were married on November 3, 1927, and prior to their marriage she had borne him a child, which, according to the death certificate signed by the defendant, died in February, 1945, aged 20 years, the birth date being given as September 20, 1924. It was undisputed that this child was born before the marriage of the defendant and Hunter. Hunter testified that they lived together from November 6, 1926, until December, 1928, and that she represented her age at the time of her marriage as approximately 18 years. If the jury chose to believe the evidence shown on the death certificate, which the defendant admitted that she signed, as to the date of the birth of her daughter, they might have disregarded that defendant's testimony and the evidence of the delayed birth certificate, to the effect that she was born in 1915, as this would have made her 9 years old at the birth of the child. There...