Clark v. Cassidy

• Citation: 62 Ga. 408
• Parties: Clark. v. Cassidy, administrator.
• Decision Date: 28 February 1879
• Court: Supreme Court of Georgia

62 Ga. 408

Clark. v. Cassidy, administrator.

Supreme Court of the State of Georgia

(February Term, 1879.)

Trover. Title. Evidence. Husband and wife. Presumptions. New trial. Before Judge Harden. City Court of Savannah. November Term, 1878.

Cassidy, as administrator of Mary E. Shaffer, brought bail trover against Clark for certain described personalty. Defendant maintained that the deceased was his wife; that she died intestate and without debts, in 1877, leaving him sole heir; and that he therefore had title to the property. He also plead specially, that he was not in possession at the time proceedings were begun against him. There was no dispute as to the fact that Clark and intestate lived together, and that be remained in possession of the property after her death; but the evidence was conflicting as to whether they were married; reputation in the neighborhood was resorted to, and this also was conflicting. The jury found for the plaintiff $500.00. Defendant moved for a new trial on the following, among other grounds:

*1. Because the verdict was contrary to law and the evidence.

2. Because the court failed to submit to the jury any instructions in regard to the issue made by the special plea.

3. Because the court charged, in effect, that the onus of proving the marriage was on Clark.

4. Because the court (after stating that the onus at the outset was on plaintiff, and that after proof of administration and possession in intestate at death, the onus was shifted to defendant) charged as follows: " The proof of the marriage must be such as to satisfy your mind. In case you are unable to make up your minds, after having heard the testimony and the arguments and consulting among yourselves, and still have such doubts that you can-not determine what to believe, such doubts must be given against the marriage, and, you must find for the plaintiff, on the ground that Clark would not, in that case, have sustained the onus which was upon him to prove his defense.

I do not mean that if you merely consider the marriage as subject to doubts you should find for the plaintiff—most cases are liable to doubts, —but only in case the doubt is such that you cannot make up your minds. If, after having heard the testimony and arguments and consulting among yourselves, you shall arrive at any belief, even though not free from doubt, that belief should be your verdict; but if you shall not be able to form a belief, the doubts which prevent the formation of the belief are to be given against him on whom is the onus of establishing the fact—the onus being on Clark in this case to establish his marriage."

5. Because the court charged as follows: "So with reputation, if the reputation is divided, some witnesses testifying that they believed them man and wife, and others that they did not, then reputation is of very little or no value to prove marriage. By divided, I do not mean equally divided. If a great many witnesses testified that they believed the parties to be man and wife, and a very few testified that *they did not consider them man and wife, you must consider their opportunities of judging, and if the reputation is really divided, and if so, in such a case reputation could not prove marriage.

6. Because the court charged as follows: "If there was a marriage between Clark and the deceased, that is the form of a marriage, and either party had a husband or wife, as the case may be, living at the time, then such marriage would be void; and it can make no difference whether he or she knew it or not, that marriage would be void; and the plaintiff in this case could recover the property if there was no other marriage that was lawful.

The motion was overruled, and defendant excepted.

R. R. Richards, for plaintiff in error.

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

JACKSON, Justice.

1. It is wholly immaterial when the goods were converted by the defendant, if it was done within the statute of limitations, and about that the record discloses that there is no dispute. Clark was in possession after intestate's death, and converted the effects sued for within the statute. 57 Ga., 407.

2. The burden in our judgment was upon Clark to show his marriage to the intestate, as his claim to the goods rested entirely upon that allegation being true. The articles were in her possession—in her house—when she died; and that fact, with the letters of administration and conversion by defendant, cast the onus upon him of showing title. He claimed title from the...