Carter v. Graves
| Docket Number | 16777. |
| Decision Date | 12 October 1949 |
| Citation | 56 S.E.2d 917,206 Ga. 234 |
| Parties | CARTER v. GRAVES. |
| Court | Georgia Supreme Court |
Rehearing Denied Nov. 18, 1949.
Syllabus by the Court.
1. Where it is sought to establish a divorce granted under the law of another State, which is different from what it would be under the law of this State, the law of such State must be put in evidence, or else presented in a manner authorizing the court to take judicial cognizance thereof.
2. Where a marriage has been regularly solemnized and the parties live together as man and wife, there is a presumption that the parties had capacity to contract the marriage, and of the existence of all other facts necessary to render the marriage valid; but this presumption may be overcome by clear, distinct, positive, and satisfactory proof.
3. While a proven ceremonial marriage will prevail over a presumption of marriage founded on cohabitation and repute yet such a ceremonial marriage will not prevail over a properly proven previous common-law marriage; accordingly the trial judge erred in ruling out the documentary evidence seeking to establish a common-law marriage; but, as to the ruling out of the oral testimony for this purpose, no question is properly presented for decision.
Mrs Annie Carter, as executrix, sought to probate the will of Annie Lee Vaughn, Leo Earl Graves filed a caveat thereto, asserting that he was the husband of the testatrix, having married her subsequently to the execution of the will, which was not made in contemplation of a future marriage, and was therefore void under Code, § 113-408. The will devised all of her property to a little boy, J. T. Vaughn Jr., whom she was seeking to adopt at the time of the execution of the will. The will was executed in November, 1945, the purported marriage book place August 9, 1947, and the testatrix died August 17, 1947. The trial judge directed a verdict for the caveator, and thereafter overruled an amended motion for new trial, the first ground of which alleges error in directing a verdict for the caveator.
The propounder claimed that the caveator was not the husband of the testatrix, for that, at the time of his purported marriage to her, he was incompetent to contract marriage for two reasons--first, that he did not have a valid divorce from a previous marriage in 1924; and second, that, even though said divorce was valid, subsequently thereto and prior to his purported marriage to the testatrix, he had a common-law wife from whom he was not divorced. Evidence material to the rulings on these two questions will be stated in the opinion.
Dunaway, Kiley & Howard, Atlanta, James M. Embriy, Atlanta, H. Fred Gober, Atlanta, Yantis Mitchell, Atlanta, for plaintiff in error.
A. W. White, Atlanta, John W. Bolton, Atlanta, for defendant in error.
ATKINSON, Presiding Justice (after stating the foregoing facts.)
1. The evidence showed that the caveator was married to Anita Carnahan in January, 1924, and that this wife procured an 'interlocutory judgment and decree of divorce' against him in Alameda County, California, on April 22, 1936; and that, on November 8, 1947, which was subsequent to the death of the testatrix, a 'final judgment of divorce' was granted in said case with the following entry thereon, 'Let this be entered nunc pro tunc as of April 23, 1937.'
It is insisted by the caveator that the nunc pro tunc order on the final judgment in the California divorce case made him competent to contract marriage after April 23, 1937. In support of this contention, his attorney read to the trial judge the case of Macedo v. Macedo, from the District Court of Appeals, Third District of California, as reported in 29 Cal.App.2d 387, 84 P.2d 552, which apparently sustained his contentions. Thereupon the trial judge directed a verdict for the caveator. There had been no evidence introduced as to the California divorce law.
Where it is sought to rely on the law of another State which is different from what it would be under the law of this State, the law of such State must be put in evidence. Champion v. Wilson & Co., 64 Ga. 184(1); Chattanooga, Rome & C. R. Co. v. Jackson, 86 Ga. 676(3), 13 S.E. 109; Craven v. Bates, Kingsbery & Co., 96 Ga. 78, 23 S.E. 202; Norman v. Goode, 113 Ga. 121(3), 38 S.E. 317; Southern Express Co. v. Hanaw, 134 Ga. 445(7), 67 S.E. 944, 137 Am.St.Rep. 227. While an exception to the general rule above stated is made in cases involving the validity of extradition proceedings, Barranger v. Baum, 103 Ga. 465(7), 30 S.E. 524, 68 Am.St.Rep. 113; Denny v. Foster, 204 Ga. 872, 52 S.E.2d 596, we know of no such exception as to establishing the divorce laws of other States.
Neither the trial court nor this court can ordinarily take judicial cognizance of the laws of California. Alropa Corp. v. Pomerance, 190 Ga. 1(1), 8 S.E.2d 62. Under the Code, § 38-112, judicial cognizance of the laws of another State will be taken by the courts of this State only when presented in some form that shows it was 'published by authority.' We have a high regard for the publishers of the Pacific Reporter, from which the California decision was read to the trial court, but it was not shown to be such a publication as is 'published by authority,' so as to authorize the trial court to take judicial cognizance thereof. As to proof of laws of another State, see also Code, §§ 38-622, 38-627; Veach v. Veach, 205 Ga. 185, 53 S.E.2d 98, and citations.
Accordingly, the caveator having relied upon the...
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