Dorsey v. Dorsey

• Decision Date: 21 May 1953
• Docket Number: 4 Div. 738
• Citation: 66 So.2d 135,259 Ala. 220
• Parties: DORSEY v. DORSEY et al.
• Court: Alabama Supreme Court

Page 135

66 So.2d 135

259 Ala. 220

DORSEY v. DORSEY et al.

4 Div. 738.

Supreme Court of Alabama.

May 21, 1953.

Rehearing Denied June 30, 1953.

Chauncey Sparks, Eufaula, for appellant.

Archie I. Grubb, Eufaula, for appellees.

MERRILL, Justice.

This cause was submitted on motion to dismiss the appeal and on its merits.

Appellees filed a motion to dismiss the appeal because appellant did not give security for costs. Appellant made an affidavit in lieu of bond on appeal stating that she was unable to give security on appeal and that she, as a married woman, was so entitled under Code 1940, Title 7, section 799. Appellee contends that the decree of the lower court, which is controlling until reversed, holds that she is not married to appellee. This latter contention is correct, but the basis of this whole proceeding is the claim that appellant had been married twice and that fact was proved without dispute.

The motion is without merit and is overruled.

This is the second appeal in this cause. The first opinion of the Court is reported in 256 Ala. 137, 53 So.2d 601, 603. A statement of the facts, portions of the bill and the original decree can be found in that opinion and will not be repeated here. We do quote three paragraphs of that opinion to show why the case was remanded. All the Justices on the Court at that time participated in the rehearing, and this opinion is primarily concerned with the additional evidence taken since remandment, although we have read all the briefs of both parties in the original case. The following is quoted from the first opinion:

'Under the decisions of this court, one attacking the validity of a marriage does not meet the burden imposed on him by showing merely that the respondent was previously married. The burden is on one attacking the validity of a second marriage not only to establish the fact of the previous marriage, but that such previous marriage has not been dissolved by divorce or death.--Faggard v. Filopowich [Filipowich], 248 Ala. 182, 27 So.2d 10, and cases cited; Jordan v. Courtney, 248 Ala. 390, 27 So.2d 783; Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422.

'We think the evidence in this case is sufficient to show the previous marriage of the respondent, Florrie Dorsey, to Ben Sawyer and that Ben Sawyer was living at the time Florrie and Ed [Dorsey] went through a marriage ceremony. However, we are clear to the conclusion, after a careful consideration of the evidence in consultation, that the complainant failed to meet the burden which was upon him to show that the marriage of the respondent Florrie Dorsey and Ben Sawyer had not been dissolved by divorce. The only evidence in the record which bears on this issue is the testimony of the respondent herself and admissions made by her. Such evidence is not sufficient to justify a decree of annulment of a marriage.--Freed v. Sallade, 245 Ala. 505, 17 So.2d 868.

'The general rule is stated in 55 C.J.S., Marriage, § 58, p[age] 940, to be as follows: 'An annulment cannot be had on the mere declarations or admissions of one of the parties to the marriage without corroborating evidence.''

After this appeal was taken, and before submission, the appellee, Ed Dorsey, died and the cause has been revived in the name of his heirs at law.

Florrie Dorsey did not appear personally in either case, but her testimony was taken by interrogatories propounded to her by complainant. Some of these questions and answers are:

'No. 4. State the name of your first husband, the date of your marriage to him: at what place and by whom you were married?

'A. My first husband was Ben Sawyer. I married him on the 18th day of October, 1918, at Georgetown, Georgia. We were married by Rev. Vicks.

'No. 5. State whether your husband is now living or dead?

'A. I do not know. * * * 'No. 8. State how long after your first marriage you lived with your husband as his wife?

'A. I lived with my first husband four years.

'No. 9. If you separated from your husband during his life, then state the approximate date of your separation?

'A. We separated about the 28th day of June, 1923.

'No. 10. Give the name and place and ages of all children born to you as a result of your first marriage?

'A. The names and addresses of my children by my first marriage are as follows: Florrie D. Sawyer, Detroit, Michigan; Rufus Sawyer, Chicago, Illinois; Annie Sawyer, Cleveland, Ohio, and Geneva Sawyer, Detroit, Michigan.

'No. 11. State whether or not you and your first husband were ever divorced and, if so, state as follows:

'(a) The date thereof; (b) the place it was obtained;

'(c) the name of the court in which it was obtained.

'A. No.'

This was all the evidence before the court on the first trial that the marriage of Florrie and Ben Sawyer had not been dissolved by divorce.

We come now to a consideration of the additional evidence taken by complainant to comply with the requirement set out above by this Court in its first opinion in this case.

It was the undisputed proof that the only county in Alabama in which either Florrie Dorsey and Ben Sawyer had ever lived was Barbour County. The testimony of the register of the Circuit Court, in Equity, of Barbour County, was taken by deposition to the effect that the records of Barbour County did not show a divorce of the parties. The evidence further showed that Florrie and Ben Sawyer had lived in only two counties in Georgia, Quitman and Bibb. Certificates of the Secretary of State of Alabama, prepared in accordance with section 429, Title 7, Code 1940, showing appropriate sections of the Georgia Constitution and statutes covering jurisdiction and venue of divorce actions in Georgia, and duties of the clerk of superior courts in the state of Georgia, were offered in evidence, together with depositions and certificates of the clerks of the superior courts of Quitman and Bibb Counties. The records of those respective counties did not show that Florrie and Ben Sawyer had ever been divorced.

It was discovered that Ben Sawyer was still alive and lived in Macon, Georgia. Interrogatories, cross interrogatories and rebutting interrogatories were propounded to Ben Sawyer. Some of the pertinent questions were as follows:

'Interrogatories----

'2. Are you the Ben Sawyer who went through a marriage ceremony with Florrie or Florida Smith on or about October 18, 1918 at Georgetown, Quitman County, Georgia?

'3. If your answer to the preceding interrogatory is in the affirmative, then answer as follows:

'(b) Name each state, county and city or town in which you have resided since October 18, 1918 to the date hereof, specifying the period of time that you lived in each such state, county and city or town.'

Cross interrogatories:

'1. Have you married since you separated from Florrie or Florida?

'2. If so, when, where and to whom?

'3. If you did marry, is the woman you married now living with you?' Rebutting interrogatories:

'1. Have you ever been divorced from Florrie or Florida Dorsey? If so, state the date on which this divorce was rendered and the name of the court which rendered said decree * * *?'

A commissioner in Bibb County, Georgia, was duly appointed by the register of the Circuit Court, in Equity, of Barbour County, and the interrogatories sent to him. The commission was dated October 4, 1951. The commission was returned in February 1952 by the commissioner together with an affidavit that he had had Ben Sawyer subpoenaed by the deputy sheriff of Bibb County, Georgia, to appear and answer the interrogatories, but that said Ben Sawyer failed and refused to answer the subpoena or to answer the interrogatories.

The trial court upon hearing the evidence made the following finding of fact: 'I am convinced that Florrie Dorsey misrepresented her marital status to complainant Ed Dorsey at the time of their marriage, and that she did declare herself to be a person allowed to recontract marriage because of a claimed divorce from the man Sawyer. I am further convinced that such deception continued for a long period of time until it was ascertained by the said Ed Dorsey that Florrie Dorsey had no divorce at the time she was married to him, Dorsey, and practiced in that way a fraud upon him. The deed executed under the circumstances named shall and will be declared invalid in so far as it relates to the respondent Florrie Dorsey, but the complainant does not ask that the half interest of this child, Eddie Mae Dorsey, be taken from her, and I do not think such should occur.'

The question now posed is whether or not the additional evidence adduced at the second trial is sufficient to meet the burden of showing that the marriage had not been dissolved by divorce.

There are no absolute presumptions of the dissolution of the first marriage state 'in order to establish the innocence of the other party to a subsequent marriage'. In each case the question is one of fact 'to be determined like any other question of fact, upon * * * the attending facts and circumstances, and such inferences as fairly and reasonably flow therefrom.' Fuquay v. State, 217 Ala. 4, 114 So. 898, 902.

The law casts a strict burden upon complainant to prove a negative, i. e., that Florrie and Ben Sawyer had not been divorced. Whitman v. Whitman, 253 Ala. 643, 46 So.2d 422.

In City of Mobile v. McClure, 221 Ala. 51, 127 So. 832, 834, the Court said:

'The burden would ordinarily be upon the plaintiff to prove such averments as are of the essence of the action, though they include a negative, unless the knowledge of such facts is peculiarly possessed by defendant, for in such event there is an administrative presumption against defendant on that issue. This continues in effect until defendant has offered evidence to the contrary. Cruse-Crawford Mfg. Co. v. Rucker, 220 Ala. 101, 123 So. 897; Toranto v. Hattaway, 219 Ala. 520, 122 So. 816; Lawson v. Mobile Elec. Co., 204 Ala. 318, 85 So. 257; ...