Copeland v. Copeland
| Decision Date | 22 October 1918 |
| Docket Number | 8145. |
| Citation | 175 P. 764,73 Okla. 252,1918 OK 597 |
| Parties | COPELAND et al. v. COPELAND et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a marriage has been consummated in accordance with the form of the law, the law indulges a strong presumption in favor of its validity. One who asserts the invalidity of such a marriage, because one of the parties thereto has been formerly married and the spouse of such former marriage is still living, has upon him the burden of proving that the first marriage has not been dissolved by divorce or lawful separation. Syllabus, Haile v. Hale, 40 Okl. 101 135 P. 1143.
The evidence of the plaintiffs in this cause, who attack the validity of the marriage of one of the defendants on the ground that she married a person who had a wife living and undivorced, is examined, and held sufficient to meet the above requirements.
Under section 8420, Revised Laws of 1910, which provides: "The issue of all marriages null in law, or dissolved by divorce are legitimate"-a child born of a marriage contracted and consummated in accordance with the form of the law, which for any reason (such as one of the parties having a living spouse undivorced) is invalid and inherits and transmits by descent as though born in lawful wedlock.
Additional Syllabus by Editorial Staff.
The courts of Oklahoma take judicial notice of the other courts of the state and their jurisdiction.
The law presumes that a public official performs his duty.
The courts of Oklahoma take judicial notice of the courts established by the acts of Congress and of Oklahoma.
Commissioners' Opinion, Division No. 3. Error from District Court, Cherokee County; John H. Pitchford, Judge.
Suit by J. C. Copeland and Samantha A. Copeland Lovejoy against Martha Copeland and Elizabeth Copeland. There was a judgment in the county court for defendants, and from the judgment of the district court on appeal in favor of defendants, and from the overruling of a motion for new trial, plaintiffs bring error. Judgment rendered, decreeing plaintiffs and defendant Elizabeth Copeland the heirs of Joe Copeland, deceased, and giving each a one-third interest in his property.
Bruce L. Keenan, of Tahlequah, for plaintiffs in error.
J. Berry King, of Tahlequah, and R. M. Mountcastle, of Ft. Gibson, for defendants in error.
On the 16th day of November, 1914, plaintiffs in error, Samantha A. Lovejoy and J. C. Copeland, filed their petition in the county court of Cherokee county in probate cause No. 1883 entitled "In the Matter of the Estate of Joe Copeland, Deceased, Martha Copeland, Administratrix," asking that they be adjudged the sole heirs at law of Joe Copeland, and that they have distributed to them whatever property the said Joe Copeland possessed at the time of his death. The defendants in error, Martha Copeland and Elizabeth Copeland, filed their answer, denying the petition, and alleging that they were the sole heirs of the said Joe Copeland, deceased, and entitled to his property upon his death. The county court, on hearing said cause on the 16th day of January, 1915, found against the plaintiffs and in favor of the defendants. From this judgment the plaintiffs appealed to the district court of Cherokee county, and said cause was heard by the district court on the 29th day of September, 1915. The district judge found in favor of the defendants and against the plaintiffs. On the 1st day of October, 1915, the plaintiffs filed their motion for a new trial, which motion was by the court on the same day overruled, to which the plaintiffs excepted, and prosecute their appeal to this court.
The undisputed facts in this case are that on the 13th day of May, 1877, Joe Copeland and Samantha A. Copeland were married in Newton county, state of Arkansas; that the plaintiff J. C. Copeland is an issue and the only issue of said marriage; that some time during the year of 1879 the said Joe Copeland left the said Samantha A. Copeland, and lived, from that date until the time of his death, in the Indian Territory; that Samantha A. Copeland never heard of him until some time after his death; that during the year 1881 the plaintiff Samantha A. Copeland, married a man by the name of Bailey Lovejoy, and lived with the said Lovejoy up and until about the time of the death of Joe Copeland; that during the year 1899 the said Joe Copeland and the defendant Martha Copeland were married in what was then the Indian Territory, and of this marriage the defendant Elizabeth Copeland was born.
The only question in controversy in the court below was the legality of the marriage between the defendant Martha Copeland and the deceased, Joe Copeland. The plaintiff; claims that the marriage between the said defendant Martha Copeland and Joe Copeland was null and void for the reason that at the time said marriage was entered into the said Joe Copeland had a living wife, the plaintiff Samantha Copeland, who had never been divorced from him. In the case of Haile v. Hale, 40 Okl. 101, 135 P. 1143, the court held:
In accordance with the law as laid down by the above case, the plaintiff assumed the burden of proof and traced the said Joe Copeland from the time he left Samantha Copeland in 1879 until he married Martha Copeland in 1889, introducing testimony to show that in each jurisdiction wherein he lived no divorce had been granted.
The defendants make only two objections to the completeness of the plaintiff's testimony. It is the contention of the defendant that the evidence shows that Joe Copeland lived in the state of Texas for the period of four years, and that there is no evidence produced on the part of the plaintiff showing that no divorce had been granted in the state of Texas. The only testimony as to Copeland's residence in the state of Texas is given by the witness Jane Rigney, who testifies that she moved to Texas on the 20th day of December, 1876; that she remembers distinctly that the year was 1876, because it was the year in which her first child was born; that in some two or three months she became acquainted with Joe Copeland; that in the month of August 1878, she left Texas on account of the sickness of her child, and she swears positively that she was in Texas only twenty months. She is the witness of the defendants, and her testimony was given partly from personal...
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