Harris v. Harris

• Decision Date: 31 December 1880
• Citation: 8 Bradw. 57,8 Ill.App. 57
• Parties: MATILDA HARRISv.HILLIARD HARRIS.
• Court: United States Appellate Court of Illinois

8 Ill.App. 57

8 Bradw. 57

MATILDA HARRIS

v.HILLIARD HARRIS.

Appellate Court of Illinois, Second District.

December Term, 1880.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Peoria county; the Hon. M. N. LAWS, Judge, presiding. Opinion filed April 6, 1881.

Messrs. CRATTY BROS. & ULRICH, for appellant; admissions as well as confessions are but weak evidence, and should be received with caution: Bergen v. the People 17 Ill. 426; Ray v. Bell, 24 Ill. 444; Straubher v. Mohler, 80 Ill. 21.

The charge alleged as the ground for a divorce must be clearly proven: Bercksman v. Bercksman, 1; E. C. Greene, (N. J.) 122 and 453.

Where the fact of a marriage becomes a material issue, it must be proven to have been a legal marriage: Myatt v. Myatt, 44 Ill. 473; The State v. Roswell, 6 Conn. 446.

Cohabitation and reputation are not marriage. They are but circumstances from which marriage may be presumed: Yardley's Estate, 25 P. F. S. 207.

The presumption of marriage arising from such facts may always be rebutted, and disappears upon proof that no marriage in fact had taken place: Senser v. Bower, 1 Penn. 452; Heffner v. Heffner, 11 H. 104; Kenly v. Kenly, 2 Yeates, 207,

That absence for the space of seven years raises the presumption of death, which continues for all time or until the absent one is shown by proof to be alive: Squire v. The State, 46 Ind. 459; Spear v. Burton, 31 Miss. 555; Sharp v. Johnson, 22 Ark. 79; Lockhart v. White, 18 Texas, 102; Town of Greensboro v. Town of Underhill, 12 Ver. 604: Rex v. Gloucestershire, 2 Barn. & Ald. 386; The King v. Inhabitants of Twyning, 2 B. & Ald. 386; 1 Greenleaf on Evidence, Sec. 35; Whiting v. Nicholl, 46 Ill. 230; Ringhouse v. Keever, 49 Ill. 470.

Common reputation and belief, in the family and among relations of the death of a party is competent evidence of the fact: 1 Starkie on Evidence, 158-159. (5th. Am. Ed:) 2 Ib. 605; Spear v. Burton, 31 Miss. 555.

The common law doctrine proceeds upon the idea of a contract between the parties: Hibblethwaite v. Hepworth, 13 Chicago Legal News, 19; Port v. Port, 70 Ill. 484.

If Lowry had a wife living at the time he married appellant, then her marriage with him was void, and she could legally contract a marriage with appellee: Gaines v. Relf, 12 How. 472; Gaines v. Hennen, 24 How, 554; Carre v. Carre, 2 Yeates, 207; 2 Kent's Com. 79; Bishop on Mar. and Div. 205; Clark v. Lott, 11 Ill. 105; Revised Statutes, Chap. 40 Sec. 3.

Messrs. COOPER & TENNERY, for appellee; that there was a good common law marriage between Lowry and appellant, cited Crouch v. Hall, 15 Ill. 263; Tinkler v. Cox, 68 Ill. 119; Port v. Port, 70 Ill. 484; 2 Kent's Com. 86, 78; Bishop on Marriage and Divorce, Sec. 359; 2 Stark. on Evidence, 365.

PILLSBURY, J.

This was a bill filed, by the appellee against the appellant, on the 30th day of July, 1878, for a divorce, on the ground that at the time of his marriage, Sept. 19th, 1876, with her, she had another husband living, one Hezekiah T. Lowry, to whom she was married in December, 1863.

Appellant, in her answer, admits the marriage to the appellee, as stated in the bill, and as to the alleged marriage with said Lowry, she says that a marriage ceremony was performed between them at Columbus, Ohio, in December, 1863, which she supposed at the time to be valid, but after living with him as his wife for about two years, she learned he had another wife living, and she then ceased longer to live with him.

She further alleges that said Lowry died in 1867, as she was informed and verily believed, and has never since that time known or heard of his being alive, and denies the allegation of the bill that he was alive at the time of her marriage to appellee, in Sept. 1876.

The cause was submitted to a jury, who, under the instructions of the court, returned a verdict for the complainant below, and a decree was entered thereon by the court, declaring the marriage void, and the defendant appealed.

The evidence of the complainant introduced upon the trial below, tended to prove that a marriage between the defendant and said Lowry was solemnized in 1863, at Columbus, Ohio, under a license issued in Indiana, and that the defendant had admitted to various persons that she had been married to Lowry, and that she had heard from him not long before such admissions were made. There is no proof in the record that said Lowry has been seen by any one since 1867. The defendant denied in her testimony that she ever made any statement that she knew or had reason to suppose that said Lowry was living in 1876. She further says that she was married to Lowry, as she at the time supposed lawfully, in 1863, at Columbus, and after such marriage lived with him as his wife until the fall of 1864, when he enlisted in the army; that he returned in Oct. 1865, to his home in Harrisburg, Pa., and she lived with him there for about two months, when she was told that he had another wife, then in the town; that she saw the woman who claimed to be his wife, and then told Lowry, “If this woman was his wife to say so, and take her away; if not, to stay at home;” that he said nothing, but laughed, and went away. That she saw Lowry once after he left, in Philadelphia, in 1867, since which time she has never seen him or heard of his being alive, but did hear, in 1868, when she was in Philadelphia, inquiring for him, that he was dead; and that she learned the same thing when there again in 1871; that at the time of her marriage to the appellee she believed Lowry to be dead, and at the time of trial still so believed.

Her daughter Ada, who was sworn as a witness, corroborates the appellant in her statements regarding the seeing of Lowry in 1867, and the rumors of his death in 1868. The appellant contends that the proof is insufficient to show that she was ever legally married to Lowry, as the license issued in Indiana under its laws was no authority for the witness Graham to perform the marriage ceremony in the State of Ohio.

However this might be, if it had been shown that the statute of the State of Ohio declared all marriages in that State void unless solemnized in accordance with its provisions, we are of the opinion that in the absence of such proof the evidence in this case established a valid marriage at common law.

Statutory provisions authorizing marriages to be solemnized according to certain prescribed forms, are considered as directory, and not construed as prohibiting the contracting of the matrimonial relation by words of present assent, in the absence of a positive declaration in the statute to that effect.

It is urged also that her marriage with Lowry was void, as he had a wife then living, therefore she had a right to marry again, and in this view the sixth instruction given for the appellee is erroneous. This instruction in substance states that even if Lowry had another wife living, yet so far as this case is concerned, the marriage must be held valid and binding, unless it be shown that Lowry was dead at the time of her marriage with the appellee.

The evidence in the case that Lowry at the time he married the appellant had another wife living, is so very slight that we cannot believe the jury were misled by the instruction upon this point. In this regard it worked no injury to the appellant, although the court perhaps would have been justified in refusing it under the authority of § 205, Bishop on Marriage and Divorce; Patterson v. Gaines, 6 How. U. S. 550; and Reeves v. Reeves, 54 Ill. 332.

The principal question in the case, as appears to us, is whether at the time of the marriage between the parties to this cause the said Lowry was still living, and upon this point we are not satisfied that under all the circumstances of the case the proof was such as to justify the jury in finding that issue in favor of the appellee.

Some of the witnesses for the appellee, it is true, state that the appellant told them she had been formerly married, and that her husband was alive; but, even if she made such statements, which she denies, the whole record considered, it is evident she had no knowledge or information respecting the fact; and while such admissions were competent for the consideration of the jury, they are of such a character when viewed in the light of all the testimony, as to entitle them to but little if any weight in the decision of the question.

Indeed, it is not seriously claimed by counsel for the appellee there is any sufficient proof that said Lowry was in fact living on the 19th day of Sept., 1876, but they, to prove such fact, rely mainly upon the presumption of the continuance of life, the argument being that he being seen alive in 1867; the presumption must be that his life continued down to the time of the marriage in 1876, unless the appellant should show that he had not been heard of for more than seven years prior to that time. It is insisted that, as the evidence shows that Lowry was alive nine years before the parties hereto were married, the burden is cast upon the appellant to prove his death in fact, or to show such circumstances as will raise the counter presumption of his death. This view of the law was indorsed by the court below, and embodied in the fifth,...