Jenkins v. Jenkins

• Decision Date: 17 April 1889
• Citation: 9 S.E. 541,83 Ga. 283
• Parties: JENKINS et al. v. JENKINS.
• Court: Georgia Supreme Court

9 S.E. 541

83 Ga. 283

JENKINS et al. v. JENKINS.

Supreme Court of Georgia

April 17, 1889

Syllabus by the Court.

1. Where the direct evidence touching the fact of an alleged marriage is conflicting, one of the parties to such marriage affirming and the other denying that it took place, and where all the material circumstances, save the fact that the party denying it contracted a subsequent marriage with a third person, which was regularly solemnized, go to support and corroborate the affirmative witness, a finding by the jury to the effect that the testimony of that witness was true is not contrary to evidence or to law.

2. The presumption of law, founded on cohabitation and repute, that a marriage had taken place, will not prevail over proof of a subsequent marriage in fact by one of the parties with a third person; but, notwithstanding such proof, circumstantial evidence, as well as direct, may be used to establish the actual occurrence of such prior marriage as matter of fact to be found by the jury.

Error from superior court, Fulton county; MARSHALL J. CLARKE Judge.

John A Wimpy, for plaintiffs in error.

R. J Jordan, for defendant in error.

BLECKLEY C.J.

This, at bottom, is a controversy between two ladies over property. These litigants may be distinguished by the lady Theresa and the lady Josie. The former claims alimony out of property which Jenkins, the disputed husband, conveyed to the latter in April, 1887, by deed founded on love and affection. The marriage of Jenkins to Josie, in October, 1886, publicly, in Atlanta, Ga., by license and a clergyman, in the presence of many witnesses, is clearly proved by the evidence, and, indeed, was an admitted fact in the pleadings. An alleged previous marriage by the same Jenkins with Theresa is in dispute. This marriage, if it occurred at all, took place in June, 1882, at Stapleton, on Staten Island, state of New York, by a clergyman, in the presence of only one person. The name of the clergyman has been forgotten, and the name of the other person, who was an aged female, is not remembered in full; her Christian name having also been forgotten. Jenkins was a United States soldier in garrison on the island. In November, 1884, his time of service having expired, he came to Atlanta, and located there, bringing Theresa with him. He resided in Atlanta nearly two years before separating from her. According to her testimony she bore three children, two of whom are dead. Both upon the island and in Atlanta, according to some of the evidence, he recognized her as his wife, introduced her as such, and cohabited with her. After the separation he agreed to make her a small monthly allowance in money, which he paid to her for several months, and then discontinued the payment. She testified on the trial of the present case to the fact of the marriage, and that the clergyman gave her a marriage certificate, which she kept until Jenkins took it away from her in Atlanta, and burned it up. She stated that while residing on the island she kept this certificate in a frame hung up in her room, where it could be seen and read. One of her witnesses testified that he had seen it and read it. Jenkins, in his testimony, denied that any marriage took place, or that there was any marriage certificate, or that he had destroyed it. In its last analysis the case resolved itself into a question of credibility of witnesses; the only two witnesses examined who knew whether the marriage actually took place being Theresa and Jenkins, both of them parties to the bill, one as complainant, and the other as defendant. The jury found for the complainant, thereby indorsing her credit, and repudiating his. The proceeding was for alimony only, as authorized by section 1747 of the Code, and it was claimed in behalf both of the complainant and her child. The bill was filed in June, 1887. The jury allowed $15 per month, and made it a charge upon the property in controversy. A motion was made for a new trial on the usual grounds, and because the court erred in charging the jury thus: "'Circumstantial evidence' is that which tends to prove the fact in question by the proof of other facts from which it may be inferred. If the fact to be proved were a marriage, an instance of direct testimony would consist in the sworn statement of a witness who was present at the marriage, and observed the performance of the ceremony. An example of circumstantial evidence in a case of that kind would consist in such a set of facts surrounding the parties supposed to be man and wife in their relation to each other, and attendant upon their lives, as that, from these facts, it could be reasonably inferred that a marriage had occurred."

1. The evidence is voluminous, and every word of it has been carefully read, and the whole carefully considered. The material circumstances, except the one fact of marriage...