Cherry v. Cherry

• Citation: 167 S.W. 539,258 Mo. 391
• Decision Date: 26 May 1914
• Docket Number: No. 16443.,16443.
• Parties: CHERRY v. CHERRY.
• Court: United States State Supreme Court of Missouri

167 S.W. 539

258 Mo. 391

CHERRY v. CHERRY.

No. 16443.

Supreme Court of Missouri, Division No. 2.

May 26, 1914.

1. EVIDENCE (§ 80)—PRESUMPTION—LAWS OF OTHER STATE.

In the absence of proof of abrogation by statute, it will be presumed the common law concerning marriage is in force in another state.

2. DIVORCE (§ 124)—MARRIAGE—EVIDENCE.

Evidence, in an action for divorce, held to sustain a finding that there was no common-law marriage.

3. DIVORCE (§ 184)—APPEAL—REVIEW.

While on review of a divorce case the appellate court is not absolutely bound by the facts as found by the trial court, yet, the evidence not greatly preponderating in favor of either party, but presenting sharp conflict, and much depending on the credibility of witnesses, it will defer largely to such finding.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Action by Rachel Cherry against John Cherry. Judgment for defendant, and plaintiff appeals. Affirmed.

Plaintiff, claiming to be the common-law wife of defendant, sues for divorce and the sum of $50,000 as alimony in gross. The petition alleges that plaintiff and defendant were lawfully married on or about January 1, 1905, in the state of Illinois; that they continued to live together as man and wife from that date till May 30, 1907; that, during all that time, she faithfully demeaned herself and discharged all her duties as the wife of defendant etc., "but that defendant, wholly disregarding his duties as the husband of plaintiff, has been guilty of committing adultery with one Lina Baskett at the county of Monroe and state of Missouri, which said act of adultery, so committed at the said county of Monroe and state of Missouri, was by defendant so committed during the married life of plaintiff and defendant"; that plaintiff was at the time of filing the suit a resident of Monroe county, Mo. The petition describes the real and personal property owned by defendant, alleged to be of the value of $100,000, and prays that she be allowed as alimony in gross the sum first above mentioned. The answer denied the marriage with plaintiff; denied the adultery with Lina Baskett, but alleged that defendant and said Lina Baskett were lawfully married on the 16th day of May, 1907. The answer further denied that plaintiff was a resident of Monroe county, Mo., at the date of the filing of the petition, or that he was the owner of property to the value alleged in the petition. Trial was had in the circuit court of Monroe county. The court found the issues in favor of the defendant, and specifically found that plaintiff and defendant were never married. A decree was entered dismissing plaintiff's petition. Plaintiff duly perfected an appeal to the St. Louis Court of Appeals, but that court properly certified the case here because of the jurisdictional amount involved. The main contested issue was over the question of the marriage. Upon this issue, the evidence of plaintiff and defendant was very conflicting. Plaintiff testified that she and defendant were married January 1, 1905, at Chicago, Ill., and that the marriage was consummated in the following manner:

"Q. Now I will ask you was there any agreement; if so, just state the agreement between you as well as you can remember it? A. I, asked him to fulfill his pledge to me, and he said, `the folks at home would almost lynch him, her people would be very angry, they did not seem to like him, and they would almost lynch him if he married me now, at that time, so soon after her death,' but he said, `A public marriage is not necessary at all; that the words that the preacher says and the fees he receives do not make us husband and wife.' He told me, `We love each other.' He asked me if I did not love him. I said, `Yes.' He said, `We love each other well enough to be husband and wife now,' and I said, `Yes,' and he put his arms round me and kissed me, and says `Sweetheart you are my wife now, you take me as your husband now and all through life, and I take you as my wife, and we are husband and wife' and I said, `Yes.' Q. After that did you live and cohabit together? A. Yes sir."

At the time of the marriage, defendant's home was at Jacksonville, Ill., but his occupation was that of a paving contractor, and the greater portion of his time was spent at Centralia, Ill., and other towns where he had contracts for paving work. Plaintiff further testified that she and defendant continued to live together as man and wife until May, 1907; that during this time defendant visited plaintiff about once a week, spending the remainder of his time at different cities where his paving contracts were being performed. Plaintiff resided in Chicago two or three years next prior to the marriage, having moved there from Bloomington, Ill., in 1902. After the marriage, plaintiff continued to live in Chicago, at the place occupied by her prior to the marriage, until about September, 1905, at which time she moved her furniture to the home of her sister in Bellevue Place, a suburb of Chicago, and remained there about a month, going from there to visit another sister living at Clinton, Iowa, where she remained until the latter part of November, 1905. From Clinton, Iowa, she went to East St. Louis, Ill., and was there met at the train by defendant, and she and defendant went to the Weiss Hotel in East St. Louis and lived there as man and wife until September, 1906; defendant visiting plaintiff at the hotel each week, generally on Sundays. In September, 1906, plaintiff moved to the Milton Hotel in St. Louis, Mo., for the purpose of learning the art of hair dressing and manicuring. On December 16, 1906, she went to Las Vegas, N. M., for the purpose of working at her newly acquired profession. She remained in New Mexico until the latter part of May, 1907, at which time she returned to Illinois. Upon learning that defendant was at Centralia, Ill., she immediately went there and registered at a hotel under the name of "Mrs. C. John," as she says, "to avoid notoriety." She had a talk with defendant, and learned from him that two or three weeks prior to that date he had married one Lina Baskett. Plaintiff asked defendant if he had secured a divorce before marrying Miss Baskett, and he said: "No." "Never mind, I will always take care of you; treat me right." Defendant gave plaintiff a check for $250, payable to Rachel Pierce—that was plaintiff's maiden name—and plaintiff left the next day. In June, 1907, she saw defendant a short time in East St. Louis, while he was waiting for a train. In September, 1907, she went to McLeansboro, Ill., to see defendant, and asked him to set aside his last marriage and allow her to procure a divorce telling defendant that he could then remarry. This last meeting was about midnight and they talked the matter over until about 3 a. m. Plaintiff came to Paris, Mo., to reside, in October, 1907, a day or two before this suit was instituted. After January 1, 1905, and while plaintiff was living in Chicago, and while visiting her sister in Iowa, and later while living at the hotel in East St. Louis, and also at the hotel in St. Louis, she received letters from the defendant. These letters and the envelopes in which they passed through the mail were introduced into evidence. The envelopes were addressed, "Mrs. J. C. Cherry." In these letters, defendant generally addressed plaintiff as "Dear Sweet Hart," and the letters were usually signed, "Your Sweet Hart Husband," or, "Your Sweet Hart." During this time, defendant paid the house rent; paid the hotel bill for plaintiff, and plaintiff's little daughter, who was living with her, and generally paid or sent her about $10 a week. Just before going to New Mexico, defendant gave plaintiff $200.

One witness for plaintiff testified that she called at plaintiff's house in Chicago, and that defendant came to the door and said that his wife was out. Another witness testified that she heard defendant refer to plaintiff as his wife.

Plaintiff testified that defendant introduced her as his wife to the manager of the hotel in East St. Louis. The manager of the hotel also testified and corroborated plaintiff in this statement, and, further, that defendant generally spent Sundays, in 1906, with plaintiff at the hotel in East St. Louis. Plaintiff testified that on these weekly visits they cohabited as man and wife, both in Chicago and at the hotel in East St. Louis, and that defendant spent two nights with her at the hotel in St. Louis, Mo. On cross-examination, plaintiff testified that she first met defendant at the Windsor Hotel in Bloomington, Ill., in 1896.

Plaintiff's girlhood home was at Todd's Point, Ill., and, at that place, in 1895, she met one Charles Watson. After keeping company with him about six months, her parents objecting, she eloped with said Watson, and a marriage ceremony was performed between them by a justice of the peace at Pana, Ill., November 30, 1895; that in 1896 plaintiff and her husband, Charles Watson, came to Bloomington, Ill., and lived at the Butler Hotel as man and wife for two or three months; thereupon Watson disappeared, and plaintiff then learned that at the time she married Watson he was a married man with a wife and three children. A short time after Watson disappeared, and on September 28, 1896, plaintiff gave birth to a child, a daughter. Watson died in 1904 or 1905. After plaintiff met defendant they went driving several times, and in 1899 defendant furnished some rooms over a saloon at Bloomington, Ill., and made arrangements for plaintiff to act as his housekeeper. This she did from 1899 to 1902, for which defendant paid plaintiff $30 a month. During this time, defendant was engaged throughout the summer months, doing paving work at Bloomington, and the remainder of his time he spent at Jacksonville, except the occasional visit that he made to Bloomington. At this time defendant was a married man, his wife and one child living at his home in Jacksonville, Ill. His...