Gibson v. Gibson

• Decision Date: 20 September 1888
• Citation: 39 N.W. 450,24 Neb. 394
• Parties: MATTIE D. GIBSON, APPELLEE, v. VINCENT H. GIBSON, APPELLANT
• Court: Nebraska Supreme Court

39 N.W. 450

24 Neb. 394

MATTIE D. GIBSON, APPELLEE, v. VINCENT H. GIBSON, APPELLANT

Supreme Court of Nebraska

September 20, 1888

APPEAL from the district court of Holt county. Heard below before TIFFANY, J.

AFFIRMED.

J. B Strode, for appellant, cited cases stated and commented upon in the opinion.

Uttley & Benedict, for appellee, on validity of the marriage, cited Comp. Stat., Ch. 52, Secs. 1, 14, and 17. Field's Lawyers' Briefs, 112. 1 Bishop Marriage and Divorce, Sec 13. Stewart Marriage and Divorce, Sec. 28. Patterson v. Gains, 6 How., 550. Blanchard v. Lambert, 43 Iowa 228.

OPINION

COBB, J.

This cause comes up on appeal from the district court of Holt county. The following is a copy of the amended petition upon which the cause was tried:

"The plaintiff complains of defendant, and for a cause of action says:

"1st. That on or about the 2d day of August, 1881, at the city of Chicago, Cook county, Illinois, the plaintiff, relying on the representations and professions of the defendant made at that time and prior thereto, met this defendant at Chicago on the date aforesaid, and, as the plaintiff then and has ever since believed, that this plaintiff and defendant were legally and lawfully married by a lawful and qualified clergyman.

"2d. That from the time of the performance of the ceremony at and in the city of Chicago as aforesaid, and for the period of two weeks, at the Briggs House in said city of Chicago, as aforesaid, the plaintiff and defendant lived and conducted themselves as man and wife.

"3d. That from that time until the first of January, 1884, relying upon the representations of the defendant, and to please and gratify him, fully believing, from the statements and letters of the defendant to the plaintiff, that they were legally married, and for some reason, to plaintiff then unknown, the marriage of plaintiff and defendant was kept a secret from his friends, this plaintiff following the vocation of school teacher in Nebraska, and the defendant that of merchandise in various places and towns in Iowa and Nebraska.

"4th. That in January, 1884, pursuant to a request of the defendant, this plaintiff, still believing that they were legally and lawfully married, met the defendant at Omaha, Nebraska, as his wife, for the purpose of arranging their future plans and arrangements, and remained with him as his wife for a period of about three weeks, at this time fully believing, from the representations of the defendant, that they were legally and lawfully married, and at this time their marriage was made public.

"5th. That again, in the month of April, 1884, the plaintiff still believing that they were legally and lawfully married as aforesaid, this plaintiff again met the defendant as his wife at Lincoln, Nebraska, and did then and there introduce the defendant, with his assent, to one R. R. Randall, a friend of plaintiff's, as the husband of plaintiff, and the defendant in turn was introduced as the husband of plaintiff by Mr. Randall to his (Randall's) wife, and a lady friend, and all without any objections or protest on the part of defendant.

"6th. That at this time, viz., in the month of April, 1884, the defendant, as the husband of plaintiff, accompanied the plaintiff to her home and among her friends and relations, and the plaintiff, fully believing that they were legally and lawfully married, and relying upon the statements and protestations of defendant, as he did then and there still accept, and has at all times since the performance of the marriage ceremony in Chicago as aforesaid accepted and claimed defendant as her lawful husband, and did then and there, to her brothers and sisters, mother, and friends, introduce defendant, and represent him as her lawful husband, with and by the approval of defendant.

"7th. That at the time of the performing of the marriage ceremony at Chicago, as aforesaid, the defendant was the owner of considerable real estate and personal property, and has since the time of the performance of said marriage ceremony, and up to the present time, been the owner of considerable real estate, in which the plaintiff has a dower interest.

"8th. That during the past year the defendant has entirely ignored this plaintiff every way, and has repeatedly denied to the friends of this plaintiff that this plaintiff and defendant were husband and wife, and claims and declares that this plaintiff and defendant were never married, and the defendant for the past year has absolutely refused to recognize the plaintiff, and has denied her all the rights and privileges of a wife.

"Wherefore the plaintiff prays that the court will examine the allegations herein set forth, and the proofs of the parties hereto, and that upon a final hearing that the court may decree that the marriage of the plaintiff and defendant at Chicago in August, 1881, was a legal and lawful marriage, and that from that time this plaintiff was and now is entitled to all the privileges and rights of a married woman, as well to her dower interest in all the real estate of the defendant as in all other things, and for such other and further relief as the court shall deem right and just in the premises."

The defendant answered with a general denial of the plaintiff's allegations.

The cause was referred to N. A. Rainbolt, one of the attorneys of the court, appointed by consent of the parties as referee to take testimony and report findings as to the law and the facts to the court below.

Subsequently the referee made his report, with the testimony, as follows:

"The undersigned would respectfully report that in pursuance of his appointment as referee in the above entitled cause, a certified copy of which furnished him is hereto attached, he fixed the 12th day of May, 1886, at nine o'clock in the forenoon, at the office of the clerk of said court, as the time and place of hearing said cause, and issued the notice hereto attached marked Ex. 'A,' and had the same served upon each of said parties ten days before the time set for hearing said cause, as will appear by the written acceptance of said parties endorsed on said notice.

"That at the time and place fixed for said hearing, to-wit: 9 o'clock A.M. of May 12, 1886, at said clerk's office in said county, said cause was called, the plaintiff appearing in person and by her attorneys, Messrs. Uttley & Small, and the defendant appearing in person and by his attorney, Hon. M. P. Kinkaid, for the sake of convenience the hearing was by consent and agreement of both parties and the referee adjourned to the office of M. P. Kinkaid, in the town of O'Neill, in said county, to which place said parties and the referee repaired. It was then and there agreed that the oral testimony and exhibits there introduced should be taken down in short-hand by Arthur L. Warrick, and by him afterwards transcribed into long-hand when needed in further progress of this cause. The said Arthur L. Warrick being present was duly sworn to faithfully and properly perform his duties as short-hand reporter, and then took in short-hand all the oral testimony introduced on the trial of said cause, and marked and filed and preserved all the exhibits offered by either or both parties in evidence.

"The undersigned further reports that, after hearing all the evidence introduced on the trial of said cause, the oral arguments of counsel and their written briefs, and after considering the whole case, his findings of facts are as follows, to-wit:

"1st. That the plaintiff and defendant were not married in the city of Chicago, Ill. at or near the time alleged in plaintiff's petition.

"2d. That no marriage was ever solemnized or pretended to be solemnized between the parties at any time.

"3d. That plaintiff and defendant never announced themselves as husband and wife, or made known or represented to the public that they were husband and wife until two or three years after the time of the claimed marriage.

"4th. That plaintiff and defendant never lived together continuously as husband and wife.

"5th. The record discloses no instance when they recognized each other as husband and wife until near three years after the time of the alleged marriage, and about the time when the plaintiff claimed to be in an interesting condition, and that recognition was to a few persons only, and for a short time.

"6th. If the parties were married in Chicago as alleged, no sufficient reason is given why it was not made known, or why it was kept secret.

"From the foregoing findings the referee concludes as matters of law:

"1st. That plaintiff has no cause of action, and that this cause should be dismissed.

"2d. That the holding out to a few persons for a limited time under the circumstances in this cause did not constitute the legal relation of husband and wife between the parties to each other, both knowing it was simulated for a purpose, conceding that the purpose was brought about by good faith and representations made by one to the other. All of which is respectfully submitted,

"N. A. RAINBOLT,

"Referee."

The defendant filed his motion asking that said report be confirmed. Plaintiff filed her objections in writing to said report and asked that the report be set aside, and that the court examine the evidence taken in the case and render such judgment on the facts and the law as the case requires, regardless of the report of the referee.

The plaintiff's exceptions, seventeen in number, are directed to the form as well as the substance of the report. It is not deemed necessary to copy them at length here, but I will observe that their due consideration by the court to which they were addressed involved an examination of the evidence taken by the referee, as well as the record proper, and the law of the case.

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