Cooper v. Cooper, s. 34679

• Decision Date: 09 June 1953
• Docket Number: 34680,No. 2,Nos. 34679,s. 34679,2
• Citation: 88 Ga.App. 335,76 S.E.2d 726
• Parties: COOPER v. COOPER (two cases)
• Court: Georgia Court of Appeals

Page 726

76 S.E.2d 726

88 Ga.App. 335

COOPER v. COOPER (two cases).

Nos. 34679, 34680.

Court of Appeals of Georgia, Division No. 2.

June 9, 1953.

Syllabus by the Court.

1. Construing the charge as a whole--the trial court properly instructed the jury as to the burden of proof. Accordingly, the excerpt complained of in the first special ground of the amended motion for new trial is without merit.

2. (a) The evidence demands a finding that there was no common-law marriage between the plaintiff in error and George Mobley;

(b) Also, that Harry Newton, at the time he entered into a ceremonial marriage with the plaintiff in error, was laboring under the disability of a prior valid undissolved ceremonial marriage.

3. An appeal from the court of ordinary to the superior court is not such a demurrer, plea, or cross-action as comes within the purview of Code, § 81-301 as amended by the act of 1952, Ga.L.1952, p. 162, requiring service of such pleadings upon the opposite party prior to filing.

The plaintiff in error, Mary Cooper, filed an application in the Court of Ordinary of Ware County, Georgia, for permanent letters of administration on the estate of Elijah Cooper, whose widow she alleged herself to be. The mother of the deceased, Wealthy Cooper, filed a caveat to this application, alleging that the applicant was not legally married to the deceased, in that she had two living husbands by previous marriages, neither of which had been dissolved by divorce, and that the caveatrix, as mother and next of kin of the deceased, was entitled to have permanent letters of administration issued to herself. The ordinary entered a judgment in favor of the caveatrix. The applicant filed her appeal to the Superior Court of Ware County, and a trial of the issue resulted in a jury verdict affirming the judgment of the court of ordinary. She then made a motion for new trial, which was subsequently amended and, after hearing, overruled, to which judgment she excepts, in case No. 34679.

The defendant in error, Wealthy Cooper, thereupon filed a cross bill of exceptions to the judgment of the court in failing to sustain her motion to dismiss the appeal, in case No. 34680.

Wilson & Wilson, Waycross, for plaintiff in error.

Joe Schreiber, Waycross, for defendant in error.

TOWNSEND, Judge.

1. Error is assigned on the charge of the court as follows:

'I charge you that the burden is on the plaintiff, Mary Cooper, to prove her case by a preponderance of the evidence. Gentlemen of the jury, After considering all the facts and circumstances of the case, under the rules of law that I have given you in charge, if you should find that the plaintiff Mary Cooper, has carried the burden of showing to your satisfaction that she is legally married to Elijah Cooper, then you would find in her favor. If she has not carried this burden under the evidence and rules of law that I have given you in charge, then and in that event you would find in favor of the caveatrix, Wealthy Cooper.'

Among the rules of law to which the court referred in the foregoing excerpt complained of, were that the burden is on one attacking the validity of a ceremonial marriage to show its invalidity by clear, distinct, positive, and satisfactory proof; that in such case the presumption is that the parties had capacity to contract; and that a presumption as to marriage arising from cohabitation and repute yields to proof of a subsequent ceremonial marriage by one of the parties. The charge, in relation to the rules of law given to the jury, was not erroneous. Mary Cooper, as applicant in the court of ordinary and as appellant in the superior court, had the burden of establishing her marriage to the deceased, and this burden of proof remained with her throughout the trial. She carried it in the first instance by offering evidence of a ceremonial marriage between herself and the deceased, and the burden of proceeding then shifted to the caveatrix to establish her affirmative defense that the marriage relied upon was in fact invalid; but this does not change the general rule that the burden of proof, properly so called, does not shift, but remains with the appellant throughout the trial. 31 C.J.S., Evidence, § 104, p. 712. This charge is not error for any reason assigned.

2. (a) It is contended by the defendant in error that the applicant's marriage to Elijah Cooper was invalid because of an existing previous undissolved common-law marriage between herself and one George Mobley. As to this marriage, she testified that, while she had relations with Mobley on 'dates' over a period of several months, she never lived with him, never married him, and never held herself out to be his wife; that no question of marriage arose between them, and that he left the state shortly before she bore him an illegitimate son. This testimony is supported by evidence of the child's birth certificate, which shows him to have been registered in the mother's maiden name, and carries the notation, 'Illegitimate,' and is supported by evidence to the same effect by relatives of the putative father. None of this...