Fuller v. Fuller

• Citation: 33 Kan. 582,7 P. 241
• Parties: AARON H. FULLER v. MARY A. FULLER
• Decision Date: 04 June 1885
• Court: Kansas Supreme Court

7 P. 241

33 Kan. 582

AARON H. FULLER v. MARY A. FULLER

Supreme Court of Kansas

June 4, 1885

Error from Butler District Court.

ACTION to have a supposed marriage declared to be a nullity. The material facts are stated in the opinion. The court declared the marriage null, but adjudged that the plaintiff, Aaron H Fuller, pay the defendant, Mary A. Fuller, the sum of $ 600 as alimony. The plaintiff complains, especially of this award of alimony, and brings the case to this court.

F. L Jones, and H. W. Schumacher, for plaintiff in error.

T. O Shinn, for defendant in error.

VALENTINE J. All the Justices concurring.

OPINION

VALENTINE, J.:

This action was brought on July 18, 1884, in the district court of Butler county, by A. H. Fuller against Mary A. Fuller, for a divorce, and to have a marriage supposed to have been consummated between them set aside and held for naught, upon two grounds: First, that the defendant had a former husband living at the time of her marriage with the plaintiff; second, extreme cruelty on the part of the defendant toward the plaintiff.

The defendant answered, setting up: First, a general denial, except as to allegations specifically admitted in her answer; second, admissions on her part of the supposed marriage to the plaintiff, as alleged by him, and also that at the time of said supposed marriage she was the lawful wife of another, but alleged that at that time she believed that she had been divorced, and that her former husband was dead, and stated reasons therefor. The defendant also, by way of cross-petition or cross-bill, alleged good faith and good conduct on her part, and that by their mutual toil and industry while living together they had accumulated property to the amount of about $ 2,300; and that the plaintiff was, at the commencement of this action, worth about $ 3,500; and also alleged that the plaintiff had in various ways misconducted himself toward her, and then prayed for a divorce from him, and that he be required to pay her $ 1,000 alimony, and $ 200 attorney's fees.

The plaintiff replied by setting up a general denial, except as to matters expressly admitted; alleging that while they lived together he received a pension of about $ 1,200, and that by investments thereof he had accumulated about the amount which the defendant claimed they had jointly accumulated, and that he was then worth about $ 3,000; and he also alleged further misconduct on the part of the defendant.

The case was tried September 22, 1884, by the court without a jury, but before proceeding with the trial the plaintiff with leave of the court struck out all that portion of the prayer of his petition which asked for a divorce, and afterward prosecuted his action merely for the purpose of having the supposed marriage between himself and the defendant declared to be a nullity. The plaintiff did not introduce any evidence tending to prove extreme cruelty on the part of the defendant, but introduced evidence merely tending to show the former marriage of the defendant, and that she had not been divorced, and that her former husband was still living. The defendant did not introduce any evidence, but offered to introduce evidence, tending to show that from $ 1,600 to $ 1,800, in value of the wealth of the plaintiff, was the product of the united labors of the plaintiff and the defendant while they were living together, and offered to introduce evidence tending to show that at the time of her marriage with the plaintiff he had full knowledge concerning her former marriage and her separation from her former husband, and also evidence tending to show that at the time of her marriage with the plaintiff she believed that she was not a married woman; but the plaintiff objected, and the court excluded the evidence, and both parties then closed their evidence. The court then made the following special findings, to wit:

"Upon the request of the plaintiff, the court makes in this case the following special findings of fact from the testimony introduced:

"1. That on the 11th day of September, 1881, the plaintiff, A. H. Fuller, and the defendant, Mary A. Fuller, did enter into the bonds of matrimony, and did contract marriage in fact.

"2. That on the 27th day of May, 1876, in the city of Joplin, Jasper county, Missouri, the said defendant was legally married to one James R. McKee, who is still living.

"3. That at the date of said marriage in fact between said plaintiff and defendant, the said defendant was then the lawful wife of said James R. McKee.

"4. The said defendant was married to the plaintiff under the name of Mary A. Walker.

"5. That said plaintiff was, at the time of commencing this suit, worth about three thousand dollars.

"6. That plaintiff is the equitable owner of lots 3, 4 and 5, block 'L,' of Herman and McKitrick's addition to the city of Augusta, Kansas, which are worth about six hundred dollars, and which is the homestead of the plaintiff."

Upon these findings the court below rendered judgment ...