Fogel v. McDonald

• Decision Date: 20 March 1931
• Docket Number: 13096.
• Citation: 157 S.E. 830,159 S.C. 506
• Parties: FOGEL v. McDONALD.
• Court: South Carolina Supreme Court

157 S.E. 830

159 S.C. 506

FOGEL v. McDONALD.

No. 13096.

Supreme Court of South Carolina

March 20, 1931

Appeal from Common Pleas Circuit Court of Georgetown County; S.W. G Shipp, Judge.

Action by Beatrice Fogel, an infant over the age of fourteen years by Harry Fogel, her guardian ad litem, against J. Herbert McDonald. From a judgment in favor of plaintiff, defendant appeals.

Reversed and remanded.

Samuel Want, of Darlington, for appellant.

Barr & Smith, of Georgetown, for respondent.

STABLER J.

This action was brought by the respondent, by her guardian ad litem, on the 7th day of September, 1929, for the purpose of having an alleged marriage between her and appellant declared void under the provisions of section 5532, vol. 3, of the Code of Laws of S.C. 1922, which provides as follows ""The Court of Common Pleas shall have authority to hear and determine any issue affecting the validity of contracts of marriage, and to declare said contracts void for want of consent of either of the contracting parties, or for any other cause going to show that, at the time the said supposed contract was made, it was not a contract: Provided, That such contract has not been consummated by the cohabitation of the parties thereto."

On the day the suit was begun, the appellant, by indorsement thereon in writing, accepted service of the summons and complaint, which, after setting forth merely formal allegations, the appointment of a guardian ad litem for the infant plaintiff, the performance of the marriage ceremony by the judge of probate of Williamsburg county between midnight of the 4th day of September and 1 o'clock a. m. of the succeeding day, at Kingstree, in substance, alleges: That the marriage was not consummated by the cohabitation of the parties; that the plaintiff never consented to the purported contract of marriage with the defendant, but that a ceremony having the form of a marriage was entered into by her in a spirit of levity and jest without realizing the seriousness of the nature of the same; that it was not her intention to legally marry the defendant, and that she thought at the time that her acts would have no serious or binding consequences, but that she, after the conclusion of such childish prank, would return to her parents, and plaintiff demanded that the said alleged marriage be annulled.

On the same day, the appellant in propria persona filed a verified answer, in form and terms obviously the production of an attorney whose name is not disclosed, in which he admitted all of the allegations of the complaint, joined in the prayer for the relief demanded therein, and consented "to all further orders and (or) proceedings in this action necessary to obtain the relief demanded in the complaint herein and this answer."

On September 9th, upon motion of respondent's attorneys, and based on the general consent set out in the answer, the cause was referred, by order of the resident judge, to the clerk of court of Georgetown county, as special referee, to take the testimony and to hear and determine all issues of law and fact involved.

The report of the special referee, bearing date the 17th day of September, 1929, states that a reference was held and testimony taken on that day.

On the 18th day of September, 1929, immediately following the "coming in" of the report of the special referee, and less than twenty days after the acceptance of service of the summons and complaint, the appellant, by his attorney, Julian L. Johnson, Esq., had served upon respondent's attorneys a verified pleading entitled "supplemental answer," which, after admitting the truth of certain allegations contained in the first paragraph of the complaint and denying the other allegations thereof, substantially, alleges by way of defense: That on the night of the 4th day of September, 1929, at the request of the plaintiff, he went to the town of Kingstree, at which place and time stated in the complaint the plaintiff and defendant were granted a marriage license setting forth the usual affidavits by both parties; that subsequent to the issuing of this license the parties were legally married by the judge of probate, of Williamsburg county, and at the conclusion of the ceremony the judge of probate executed the usual certificate of marriage attached to the reverse side of the marriage license; that the plaintiff refused to leave the defendant at Kingstree and remained with him until she was enticed away by false statements regarding the physical condition of her mother; that the plaintiff requested the defendant to enter into the marriage contract with her, which, after due consideration, he consented to do; that she is the legal wife of the defendant, and he asks that the complaint be dismissed.

On September 23, 1929, respondent's attorneys served upon the appellant's attorney a notice of a motion to be heard on September 28, 1929, for a decree confirming the report of the special referee and declaring the alleged marriage contract void ab initio.

At the hearing of this motion, appellant's attorney directed the attention of the circuit judge to the "supplemental answer," objected to the rendering of final judgment on the ground that the appellant was entitled to offer testimony in support of his "supplemental answer," and that, in effect, he had not had his day in court. The circuit judge overruled these objections and signed a decree in conformity with the prayer of the complaint annulling the marriage.

From the foregoing narration of the proceedings in the circuit court, the following facts, and inferences deducible therefrom, plainly appear:

The marriage in question entered into at Kingstree on the 5th day of September, 1929, was dissolved by judicial decree within twenty-three days thereafter, and all the proceedings, except the disposition of the motion for a decree confirming the report of the special referee, were carried through within eighteen days after the marriage ceremony was performed. Thirteen days after the marriage, and eleven days after the service of the summons and complaint, but one day after the filing of the report of the special referee, the appellant served an alleged "supplemental answer," which on its face is clearly an amended answer, as we shall hereafter show, denying the allegations of the complaint and alleging affirmatively the legality, and, by clear implication, the consummation of the marriage. The order referring the cause to a special referee was made without any specific notice and upon the general consent contained in the original answer of the appellant. The special referee does not state in his report where the reference was held, who was present thereat, nor was any notice given appellant of the filing of the report of the referee, except the general consent embodied in the original answer, although the amended answer had been duly served. Five days after service of the amended answer, respondent served upon appellant's attorney notice of a motion to be heard before the circuit court on the 28th day of September for an order confirming the report of the special referee in which the annulment of the marriage was recommended. Attorneys for respondent took no action to reject or otherwise dispose of the amended answer, except, apparently, to contend before the circuit judge that the...