Hutchins v. Kimmell

• Decision Date: 12 January 1875
• Citation: 31 Mich. 126
• Court: Michigan Supreme Court
• Parties: Jacob Hutchins v. Gottlieb Kimmell

31 Mich. 126

Jacob Hutchins v. Gottlieb Kimmell

Supreme Court of Michigan

January 12, 1875

Heard October 28, 1874; October 29, 1874.

Error to Jackson Circuit.

Judgment of the circuit court affirmed, with costs.

Afterwards, at the April term, 1875, a motion was presented for a rehearing of this cause.

Motion for a re-argument denied.

Higby & Gibson, for plaintiff in error.

Crane & Montgomery, and David Johnson, for defendant in error.

W. K Gibson, for plaintiff in error, was heard for the motion.

M. V. Montgomery, for defendant in error, contra.

OPINION

Cooley, J.:

Kimmell sued Hutchins in case for criminal conversation with Philopena Kimmell, the wife of the plaintiff. Having recovered judgment, the case is brought here on exceptions to various rulings of the circuit judge.

1. It is objected that the judge permitted evidence to be given of the offense charged before any proof had been made that plaintiff and the woman were husband and wife. But this only relates to the order of proof, and was within the discretion of the circuit judge.-- Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99.

2. It is also objected that evidence was received of the conduct of the plaintiff the evening and morning following the communication to him of his wife's offense. We see no error in this. The purpose was to show how he was affected by the disclosure, and the proof would naturally and properly bear upon the question of damages.

3. Complaint is also made that certain documents in a foreign language were permitted to be translated in the hearing of the jury before the court had decided upon their admissibility. But this, whether proper or not, became immaterial when the court afterwards received them in evidence.

4. The evidence of marriage relied upon by the plaintiff was a marriage of John Gottlieb Kimmell and Sabrina Philopena Kimmell, born Utz, and the court was requested to instruct the jury that there was no evidence of the identity of these parties with the plaintiff and the woman he claimed to be his wife. The request was refused. The evidence that plaintiff's full name was John Gottlieb Kimmell was clear and undisputed, but there was no evidence of the identity of the woman with Sabrina Philopena Kimmell, except that she was known by the name of Philopena Kimmell, and that her maiden name was Utz. But in these were certainly some evidences of identity, and however slight they might be, their weight was for the jury.

5. The only other assignments of error which seem to us to require attention are those which relate to the proof of the marriage. The marriage was alleged to have taken place in the kingdom of Wurtemberg, and the evidence of it consisted of the following certificates:

(a) The certificate of Ferdinand Haug, describing himself minister of the Evangelist Lutheran church at Winesbergh, in the kingdom of Wurtemberg, that on the register of his religious denomination of which he has charge there is recorded the marriage of John Gottlieb Kimmell and Sabrina Philopena Bauchle, born Utz, performed by the minister Shilling, pastor of the society, who had lawful authority to perform the same.

(b) The certificate of the judge of the High Court of Winesbergh of the kingdom of Wurtemberg, that the certificate of the minister Haug is genuine and entitled to credit, and that the marriage certified to, was "in due form and properly solemnized."

(c) The certificate of the chief chancellor of the department of justice, in attestation of that of the judge of the High Court of Winesbergh. To this was also added the certificate of the American consul, but that is immaterial.

All these certificates were objected to when offered, on various grounds, which in the argument in this court are narrowed down to the following: first, because they were not accompanied by any proof of the foreign law regulating marriages in Wurtemberg; and, second, because it is not sufficient that a ceremony was performed purporting to be a marriage, unless it is also shown that such ceremony was recognized by, and in accordance with the law of the country where it took place. We take these objections as they are presented in the brief of counsel for the plaintiff in error, rather than as they were made below, because we have a right to suppose that as thus given they point out all the error in law supposed to have been committed in their reception, and that they have been framed with deliberation, with a view to calling our attention to the precise point which is designed as the subject of our examination. It will be perceived that no point is made upon the proof, by these certificates or otherwise, of the fact of a ceremony of marriage between the parties named in the minister's certificate, but the objections are narrowed to this: that there is no proper and legal showing of what was the law of Wurtemberg, on the subject of marriage, and consequently it does not appear that the ceremony perfected a legal marriage. The point is that proof of the ceremony alone was not proof of the marriage, until the law was shown which would make it such.

It is not disputed that in a case of this nature an actual marriage must be proved. Such evidence of cohabitation and reputation as would be sufficient in other civil actions will not suffice where it is sought to fix upon the woman a charge of adultery.--Addison on Torts, 698; 2 Green. Ev., § 461; 1 Bish. Mar. and Div., § 442, 4th ed. But had the supposed marriage taken place in this state, evidence that a ceremony was performed ostensibly in celebration of it, with the apparent consent and co-operation of the parties, would have been evidence of a marriage, even though it had fallen short of showing that the statutory regulations had been complied with, or had affirmatively shown that they were not. Whatever the form of ceremony, or even if all ceremony was dispensed with, if the parties agreed presently to take each other for husband and wife, and from that time lived together professedly in that relation, proof of these facts would be sufficient to constitute proof of a marriage binding upon the parties, and which would subject them and others to legal penalties for a disregard of its obligations. This has become the settled doctrine of the American courts; the few cases of dissent or apparent dissent being borne down by a great weight of authority in favor of the rule as we have stated it.-- Fenton v. Reed, 4 Johns. 52; Jackson v. Winne, 7 Wend. 47; Starr v. Peck, 1 Hill 270; Rose v. Clark, 8 Paige 574; Matter of Taylor, 9 Paige 611; Clayton v. Wardell, 4 N.Y. 230; Cheney v. Arnold, 15 N.Y. 345; O'Gara v. Eisenlohr, 38 N.Y. 296; Pearson v. Howey, 6 Halst. 12; Hantz v. Sealy, 6 Binn. 405; Commonwealth v. Stump, 53 Pa. 132; Newbury v. Brunswick, 2 Vt. 151; State v. Rood, 12 Vt. 396; Northfield v. Vershire, 33 Vt. 110; Duncan v. Duncan, 10 Ohio St. 181; Carmichael v. State, 12 Ohio St. 553; State v. Patterson, 2 Ired. 346; Londonderry v. Chester, 2 N.H. 268; Keyes v. Keyes, 2 Fost. 553; Bashaw v. State, 1 Yerg. 177; Grisham v. State, 2 Yerg. 589; Cheseldine v. Brewer, 1 H. & McH. 152; State v. Murphy, 6 Ala. 765; Potier v. Barclay, 15 Ala. 439; Dumaresly v. Fishly, 10 Ky. 368, 3 A.K. Marsh. 368; Graham v. Bennet, 2 Cal. 503; Case v. Case, 17 Cal. 598; Patton v. Philadelphia, 1 La.Ann. 98; Holmes v. Holmes, 6 La. R., 463; Hallett v. Collins, 51 U.S. 174, 10 HOW 174, 13 L.Ed. 376.

Such being the law of this state, it remains to be seen whether the rule can be applied to a marriage contracted in a foreign country, in the absence of any evidence showing what is the law on the subject of marriage in such foreign country.

The general rule of law is, that a marriage valid where it is celebrated, is valid everywhere, but the converse to this is equally general, that a marriage void where it is celebrated, is void everywhere. As every country is at liberty to make regulations of its own on the subject which other countries must respect, and by which they must in general judge of the validity of a marriage contracted where the regulations prevail, and as these regulations may and often do require something more than the mere consent of the parties, it may follow in any case that a presumption of marriage, based upon such facts merely as would be sufficient to establish one if contracted here, would be a presumption against the fact, and would support a marriage which the local law would condemn, and the local courts would refuse to recognize or support.

All presumptions, however, are liable to be contrary to the fact but they attend us at...