Bourland v. Hatchcock

• Decision Date: 17 April 1939
• Docket Number: 33670
• Citation: 186 Miss. 223,188 So. 9
• Court: Mississippi Supreme Court
• Parties: BOURLAND v. HATCHCOCK et al

188 So. 9

186 Miss. 223

BOURLAND v. HATCHCOCK et al

No. 33670

Supreme Court of Mississippi, Division A

April 17, 1939

APPEAL from the chancery court of Monroe county HON. JAMES A FINLEY, Chancellor.

Proceeding by Oliver Hatchcock and others against R. H. Bourland to determine the right of succession to the property left by Mrs. Lodell Pickle Bourland. From an adverse decree defendant appeals. Affirmed.

Affirmed.

I. L Sheffield, of Fulton, for appellants.

It is fundamental and I take it that it will not be denied that the law presumes the validity of a ceremonial marriage and in order to sustain this presumption it even presumes death or a divorce.

Pigford v. Ladner, 103 So. 218.

Where a marriage is contracted ceremoniously, every reasonable presumption will be indulged in favor of its validity.

Pigford v. Ladner, 112 So. 785; Aldridge v. Aldridge, 77 So 150; Sullivan v. Grand Lodge, K. P., 62 So. 360; Colored Knights of Pythias v. Tucker, 46 So 51; A. & V. R. R. Co. v. Beardsley, 30 So. 660; 31 Miss. 555; Wilkie v. Collins, 48 Miss. 496, 511.

As to the testimony of James Boren, this evidence was admitted by the court below, in the form a deposition, the witness being an abstractor connected with the Bluff City Abstract Company of Memphis, Tennessee, a man having no authority and not the custodian of the records of any public office in Shelby County, Tennessee. It appears that this abstractor investigated the records in an effort to ascertain whether or not a divorce had been granted to Dorothy Hunt Bourland. Under elementary rules this was clearly inadmissible.

10 R. C. L. 903, sec. 54.

Under the best evidence rule it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes that evidence which itself indicates the existence of more original sources of information. The contests of books and records can be proved only by public books or records if in existence.

10 R. C. L., page 906, sec. 59, page 907, sec. 61 and page 908, sec. 62.

In all cases where secondary evidence is admissible it must be shown that a reasonable effort was made to obtain the original.

10 R. C. L. 914, sec. 72; Smith v. Bd. of Suprs., Tallahatchie County, 86 So. 707, 124 Miss. 36; Hunter v. Bennett, 115 So. 204, 149 Miss. 368; Goodall v. Stewart, 3 So. 257, 65 Miss. 157; Stublefield v. Roper, 101 So. 852, 136 Miss. 831.

Under familiar rules the proof of the existence or non-existence of the judgment of the court of record in foreign jurisdiction can be done only in the manner prescribed by law.

R. G. McLin & Co. v. Worden, 55 So. 358, 99 Miss. 547; Sec. 1572, Code of 1930.

If records were permitted to be established in the manner attempted in this case by complainants endless confusion would result because the number of parties who might investigate such records and testify in regard to the contents thereof would be without limit. Indeed this evidence is not admissible.

I submit to this court that the court below committed fatal error in holding that the proof offered by complainants met the presumption of law that a divorce was obtained by Dorothy Hunt Bourland. She was not accounted for in Memphis, Tennessee, during the period of time from 1929 to 1934 and certainly the requirements under recent legislation for obtaining a divorce are so lenient that a party may move from one jurisdiction to another and obtain divorce in a very short space of time. Who can say that this was not done. The law presumes that it was done and I submit therefore that we are entitled to a decree.

Paine & Paine, of Aberdeen, for appellants.

Our associate counsel, Hon. I. L. Sheffield, has cited the leading cases in our state with reference to the presumptions attending a ceremonial marriage. In addition to those authorities we call the court's attention to some other authorities decided later than the ones cited by counsel as follows, to-wit:

Essick v. Essick, 175 Miss. 412, 167 So. 420; Harper v. Fears, 168 Miss. 505, 151 So. 745; Wilkie v. Collins, 48 Miss. 496.

Appellees failed to overcome this presumption of a divorce having been obtained by Mrs. Dorothy Hunt Ballard Knight Bourland. We insist that they failed to overcome this presumption for two different reasons. 1. Appellees failed to account for the time this woman was out of Memphis, Tennessee, and failed to show by the evidence in the case that she had resided continuously in Memphis, Tennessee, from the separation from appellant Bourland up to December 1929. 2. The appellee did not even prove by the best evidence rule that this woman did not obtain a divorce in Memphis, Tennessee, where appellees contend she lived all this period of time.

We respectfully submit that the best evidence of whether the records of Shelby County, Mississippi, showed a divorce or no divorce was the deposition or certificate of the official custodian of these records.

10 R. C. L. 1105, sec. 311.

As has been properly said, records are no more self proving than are private rights and they must be properly authenticated before they may be introduced in evidence. If available such proof should come from the custodian of the record.

Junior v. State, 76 Ark. 483, 2 L.R.A. (N.S.) 652; Sec. 1566, Code of 1930; 22 C. J. 1006, sections 1282 and 1283.

The rule of evidence commonly known as the best evidence rule is that the highest degree of proof of which the case from its nature is susceptible must if accessible be produced; or in other words, that no evidence shall be received which presupposes that the party who offers it can obtain better evidence.

22 C. J. 974, sec. 1220.

Leftwich & Tubb, of Aberdeen, for appellees:

Appellants have cited several cases on the presumption of death that arises when a person remains beyond the sea or absents himself from this state or conceals himself in this state for seven years successively without being heard of. They include the cases of Howard v. Kelley, 111 Miss. 285; Harper v. Fears, 168 Miss. 505; Essick v. Essick, 175 Miss. 412; and Pigford v. Ladner, 138 Miss. 461, 142 Miss. 435, 147 Miss. 822. These cases, all except the Howard-Kelley case, are based on this presumption of death which arises when a person thus absents himself.

Sec. 1537, Code of 1930; A. & V. Ry. Co. v. Beardsley, 79 Miss. 417.

In Watson v. Watson, 177 Miss. 767, 171 So. 701, this court held that the presumption ends when the facts appear.

No presumption of death can be indulged in the present case. It is true appellant's wife, Dorothy Hunt Bourland, in January, 1930, left Monroe County and went back to her home in Memphis. But she has not, within the meaning of this statute, absented herself from the state for the period of seven years. And, furthermore, she was only away for a period of not quite five years, from January 1930 to December 1934, at which time appellant married Lodell Pickle in Monroe County, Mississippi It is clearly manifest that appellant knew all the time the whereabouts of this woman, Dorothy Hunt Bourland.

Now, assuming that on proof of the ceremonial marriage of appellant to Lodell Pickle on December 24, 1934, that the presumption arises that there was no impediment to this marriage, in other words, that his former wife was either dead, or that the marriage to her had been dissolved by divorce. As we have just shown, the presumption of death cannot arise to dissolve this marriage because this woman is still alive and within the statutory period of seven years, even if she had absented herself from or concealed her self within the state.

We confess that the presumption which attends a ceremonial marriage, throwing around that marriage all the presumption of innocence, is a very strong and favored presumption of the law. But it is not a conclusive presumption. This presumption that the previous marriage had been dissolved by divorce in this particular case is overcome and ends when the proof appears that no divorce had been granted to these parties or either of them.

38 C. J. 1343, sec. 115; Clark v. Clark, 115 Miss. 726, 76 So. 638; Sullivan v. Grand Lodge K. P., 97 Miss. 218, 51 So. 360; Thomas v. Clay, 120 Miss. 190, 82 So. 1; Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 1.

The question as to whether or not a divorce had been granted dissolving the former marriage is a question of fact which may be proved as any other fact may be established by competent evidence. It is true that in cases of this nature, as is held in practically all of the cases sustaining these presumptions, if no evidence at all is introduced by the party attacking the marriage, then the presumption will prevail and the second marriage will be held lawful and valid; but in the case at bar appellees brought to the attention of the court and introduced all of the testimony available on that subject as to whether or not the former marriage between appellant and Dorothy Hunt Bourland had been dissolved by a decree of divorce.

The testimony of David Ballon was competent and admissible. Although public records are here searched to ascertain whether or not they contain any divorce proceedings as between these parties, yet the final result is to the effect that no such record exists. In other words, no bill has been filed. The public records do not disclose any such suit or proceeding, and, therefore, no decree of divorce appears on these records. We are here proving a negative. We are making proof that no divorce exists. We are not making secondary proof of the contents of a public record, as in case of these divorces granted this lady from her former husbands, and in the estate proceedings of Hugh B. Hunt, her first husband. If we should undertake to prove the contents...