Golden v. Whiteside

• Decision Date: 24 January 1905
• Citation: 109 Mo. App. 519,84 S.W. 1125
• Court: Missouri Court of Appeals
• Parties: GOLDEN v. WHITESIDE.<SMALL><SUP>*</SUP></SMALL>

84 S.W. 1125

109 Mo. App. 519

GOLDEN v. WHITESIDE.^*

St. Louis Court of Appeals. Missouri.

January 24, 1905.

EQUITY — DECREE ANNULLING MARRIAGE — MISTAKE — SETTING ASIDE DECREE.

1. Plaintiff and defendant, her husband, separated, making a division of the property satisfactory to both parties, and thereafter, on discovering that a former husband of plaintiff had been alive at the time of the marriage ceremony between plaintiff and defendant, plaintiff obtained a decree annulling the marriage of herself and defendant, but plaintiff subsequently discovered that her first husband had been married at the time of his marriage to her, and she sued in equity to have the decree of annulment set aside on the ground of mistake. Defendant died shortly after the petition was filed. There was no evidence that plaintiff, after the separation, performed any of the duties of a wife to defendant, or that his estate had been increased. Held that, as the only effect of a setting aside of the nullity decree would be to give plaintiff a right of dower in defendant's estate, the relief would be denied.

Appeal from Circuit Court, Clark County; E. R. McKee, Judge.

Suit by Matilda Golden against John A. Whiteside. From a decree in favor of defendant, complainant appeals. Affirmed.

Berkheimer & Dawson, for appellant. Plantz, Smoot & Rutherford, for respondent.

BLAND, P. J.

The suit is by bill in equity to set aside a decree rendered by the Clark circuit court at its November term, 1897, annulling a marriage between plaintiff and William Golden. The facts upon which plaintiff relies to have said decree set aside, briefly stated, are as follows: In the year 1876 plaintiff married one David Townsend, by whom she had several children. Townsend deserted her in 1882, and was not heard of by her for over 10 years. Thereafter, in 1892, plaintiff, supposing Townsend to be dead, married William Golden, with whom she lived as his wife for about three years, when, by mutual consent, they separated, and made a division of their property satisfactory to both parties. About two years after their separation, plaintiff learned that Townsend was living, and was an inmate of the Soldiers' Home at Quincy, Ill. On gaining this information she commenced her suit against William Golden to annul their marriage, setting forth her marriage to Townsend, his desertion and disappearance, her supposition that he was dead, and her marriage to Golden. Golden answered, admitting the facts stated in the petition, and the court found the facts as alleged, and entered a decree annulling the marriage between plaintiff and Golden. Townsend, who was an ex-soldier, died in 1900 or 1901, and plaintiff, after learning of his death, made application to the United States Pension Department for a pension as the widow of Townsend. In reply to her application, she received a letter from the commissioner of pensions, which was read in evidence by agreement. The letter is as follows:

"Department of the Interior, Bureau of Pensions. Washington, D. C., September 11, 1901. Mrs. Matilda Townsend, Kahoka, Clark County, Mo. — Madam: In response to your communication of May 17, 1901, relative to your rejected claim as widow of David Townsend, late of Company G, 124 Illinois Infantry, Original No. 497,310, which claim is on file with the papers in the claim of Elizabeth Townsend, who was granted a pension as widow of said soldier under certificate No. 512,088. You are advised that after an exhaustive special examination the evidence shows that the soldier was married previous to his marriage to you, to-wit, on August 5, 1852, in Henry county, Iowa. He was married to Miss Elizabeth...