Colored Knights of Pythias v. Tucker

• Decision Date: 06 April 1908
• Docket Number: 12,897
• Citation: 92 Miss. 501,46 So. 51
• Court: Mississippi Supreme Court
• Parties: COLORED KNIGHTS OF PYTHIAS v. PINKIE TUCKER

46 So. 51

92 Miss. 501

COLORED KNIGHTS OF PYTHIAS v. PINKIE TUCKER

No. 12,897

Supreme Court of Mississippi

April 6, 1908

FROM the circuit court of Madison county, HON. DAVID M. MILLER Judge.

The appellee, Mrs. Tucker, was plaintiff, and the Colored Knights of Pythias, appellant, was defendant in the court below. From a judgment in plaintiff's favor defendant appealed to the supreme court.

The opinion of the court states the facts,--the instruction considered by the court being in the following words:

"No 3. The court further instructs that, even though you believe from the evidence that Pinkie Tucker was married to Charley Diamond before she married Jake Tucker you are bound to presume a divorce from said Charley Diamond, unless it is conclusively proved by positive evidence that no divorce had been granted before the second marriage. And on this line the court instructs you that under our statutes divorce proceedings must be instituted and decrees granted in the county in which the defendant resides, if the defendant be a resident of the state, or in the county of the residence of the parties at the time of separation; and unless the defendant herein has conclusively shown that both Pinkie Tucker and Charley Diamond were residents of this county at the time of their separation, and that they both resided in this county until the date of the marriage of Jake and Pinkie Tucker, then they have not shown conclusively that a decree of divorce has not been granted, and until this is shown you are bound to presume a divorce between Diamond and Pinkie Tucker."

Reversed and remanded.

W. J Latham, for appellant.

A preponderance of the testimony shows that Pinkie Tucker never lived in any other county than Madison, and the only direct testimony which contradicts that is from herself, and that indefinite as to the time when she absented herself from Madison county.

Unless there was a valid divorce, granted by a court of competent jurisdiction, between her and Charles Diamond, before her marriage to Tucker, or Diamond was dead before she married Tucker, she is yet the lawful wife of Diamond, and the marriage to Tucker was illegal and she is not the widow and heir of Tucker. It is certain that she obtained no divorce. Diamond obtained no divorce in Madison county, which was the county of their separation and of his residence, and he obtained no divorce in any other county to the knowledge of the appellee, and it is also certain that Diamond is not dead. If Diamond had obtained a divorce in any other county than Madison, where he resided and where the separation took place, such divorce would be illegal, null and void and of no effect to legalize the marriage of Pinkie with Tucker. Code 1892, § 1569, clearly provides and shows in what county complainant must file his bill for divorce. If the complainant is still a resident of the county in which the separation took place, the bill must be filed in the county of his residence. See Code 1892, § 1569, (Code 1906, § 1677.) The evidence shows that Madison county was the county in which the separation occurred, and that Charles Diamond has continued to reside in that county until this day. So that had he filed a bill of divorce, he could not have legally filed it in any other county than Madison county; and a decree dissolving the marriage relations between Diamond and Pinkie, instituted by him in any other court than the chancery court of Madison county would be illegal. No divorce was granted in Madison county. Hence we must conclude that there was no divorce granted between Pinkie Tucker and Charles Diamond. The marriage of Pinkie with Tucker was an illegal marriage, and she is not his widow and heir. The jury finding a verdict in plaintiff's favor, with such evidence before them, reached an incorrect verdict and their verdict should have been set aside by the court.

Counsel for the appellee will insist upon the court adopting the theory that Charles Diamond might possibly have obtained a divorce at Greenville, Washington county, or some other of the seventy-six counties of the state, without the knowledge of Pinkie and therefore the jury might presume a divorce had been granted. We insist that even could such presumption of divorce be indulged in, a construction of Code 1892, § 1569, would break down such presumption and declare such a divorce illegal and of no effect. "This chasm has no bridge, but conjecture, which is insufficient to maintain a jury in crossing to a verdict in any case." The verdict must have a better foundation. There was only a possibility that a divorce was granted. A new trial should have been granted on the motion. See Illinois, etc., R. R. Co. v. Carthy, 70 Miss. 332, 12 So. 253; Harris v. State, 71 Miss. 462, 14 So. 266; Monroe v. State, 71 Miss. 196, 13 So. 884; Dodson v. State, 67 Miss. 330, 7 So. 327; Solomon v. Compress, 69 Miss. 319, 10 So. 446, 12 So. 339; Myers v. Farrell, 47 Miss. 281.

The three instructions given the plaintiff in the court below are all erroneous and point to the idea of a presumption of divorce. Before the courts will indulge in any presumptions of divorce from a former marriage, that presumption must have some foundation or else it will not be indulged--it will fall. The fact that Charles Diamond might have gone to some other county than the proper one and obtained a divorce from appellee, in the light of the evidence before the jury, will not create any legal presumption that he had a divorce, and to so instruct the jury is a serious error. What reason did Pinkie have to presume that Diamond had gotten a divorce from her? None. Why presume an illegal and impossible thing? See the case of Ellis v. Ellis, 58 Iowa 720; Gillman v. Sheets, 78 Iowa 499.

E. B. Harrell, for appellee.

When it has been shown that marriage has been consummated according to law, it will be presumed that no legal impediment existed to prevent the parties from entering into matrimonial relations; and the fact, if shown, that either or both of the parties have been previously married, and at a former time had a wife or husband living, does not destroy the prima facie legality of the last marriage. The inference is that the former marriage has been legally dissolved, and the burden of showing that it has not rests upon the party seeking to impeach the last marriage. Harris v. Harris, 8 Ill. App., 57; Pittinger v. Pittinger, 28 Col. 308, 309, 310, 311.

Appellant has failed to make this proof and contents himself with the disclosure of the records of Madison county. The evidence herein shows that Pinkie Tucker lived separate and apart from her first husband for about ten years and during that period she resided in Washington county, for about three years, and remainder of the time in Madison county. Now we contend that if she had the right to presume a divorce in Madison county, she had the same right to presume a divorce in Washington county. Why is it that appellant did not have a certificate from the clerk of the chancery court of Washington county disclosing his records? Why didn't it question the plaintiff (she testified at its request) to see if she had ever been served with any kind of process for divorce? She stated that she had been informed and believed that her first husband had been granted a divorce, and that he married eight years before she did.

This certainly is enough to raise the presumption of the dissolution of the first marriage.

Appellant contends that if the first husband had filed a bill for divorce in any other court than Madison the proceedings would have been void.

Upon examination of the Code 1892, § 1569, we find this language: "If the defendant be a resident of this state the bill shall be filed in the county in which the defendant resides or may be found at the time." On several pages of this record we find testimony to the effect that appellee was a resident and could have been found in Washington county, Mississippi. Surely that county had jurisdiction! This very fact is the foundation of our verdict for the jury presumed a divorce in that county.

Argued orally by W. J. Latham, for appellant and E. B. Harrell, for appellee.

OPINION

MAYES, J.

The record shows that Pinkie Townes married Charley Diamond in Madison county on the 18th day of October 1894, and that Charley Diamond is still living in the county where this marriage was celebrated. It also shows that about ten years afterwards--that is to say, on the 24th day of December 1904--Pinkie Townes, then going under the name of Pinkie Diamond, married Jake Tucker, and this second marriage also took place in Madison county. It is undisputed that Pinkie Diamond, who married Jake Tucker in 1904, and Pinkie Townes, who married Charley Diamond in 1894, is one and the same person. Jake Tucker...