Johnson v. Johnson

• Decision Date: 14 November 1885
• Citation: 3 N.E. 232,114 Ill. 611
• Parties: JOHNSON v. JOHNSON.
• Court: Illinois Supreme Court

114 Ill. 611

3 N.E. 232

JOHNSON

v.JOHNSON.

Supreme Court of Illinois.

Filed November 14, 1885.

Error to appellate court, Third district.

SHOPE, J.

This was a bill for divorce filed by Sarah C. Johnson, defendant in error, against Michael E. Johnson, plaintiff in error, in the Cass circuit court, where a decree of divorce was rendered. The cause was taken by writ of error, by defendant below, to the appellate court of the Third district. The decree of the lower court was there affirmed, and the present writ of error is prosecuted to this court from that order of affirmance. The bill alleges, in the usual form, the residence of complainant, her marriage with defendant, and charges willful desertion by him for more than two years, etc. At the August term, 1884, of said circuit court the defendant appeared, and filed a plea averring, in apt words, that before the filing of her bill in said court, the complainant had exhibited her bill in the Menard circuit court against the defendant for divorce, and alleging as cause therefor the same matters, etc., set up in her bill here filed, but failed to aver that such former proceeding was still pending. To this plea a demurrer was interposed, and sustained by the court, and this ruling is, among others, assigned for error. The demurrer was properly sustained. The plea to have been sufficient should have averred that the former cause was then pending. Garrick v. Chamberlain, 97 Ill. 620. The defendant, by leave of the court, answered, denying the allegations of the bill. Replication being filed thereto, the cause was tried by a jury, resulting in a verdict for complainant. A motion by defendant for a new trial was overruled, and, on a subsequent day of the term, a decree of divorce entered. After the jury had retired to consider of their verdict, the defendant, by leave, filed an amendment to his answer, in which it was averred ‘that at the time of the pretended marriage of the complainant with the defendant, the complainant was a married woman, and was then and there the wife of one Albert Thurber, who was then and there alive.’ After the return of the verdict, this amendment was, on complainant's motion, stricken from the files, and this ruling is also assigned for error. This motion was addressed to the sound discretion of the court, the exercise of which will not be the subject of review, unless it appears that some substantial right has been lost to the defendant, or some legal or equitable defense denied him.

In the view we take of this case, as will be seen hereafter, this amendment could have been of no avail to the defendant upon the case made by the evidence introduced or offered in the court below. That the evidence is sufficient to warrant the verdict and decree in favor of complainant is not denied by counsel for defendant, if her marriage with the defendant was a valid marriage. The serious contention is that at the time of the marriage of complainant with defendant she had a former husband living, and therefore her marriage with defendant was void; that, whatever her rights under a bill properly framed for that purpose might be, no relief could be granted under this bill. This position of counsel would be undeniable if the evidence warrants the assumption that complainant had a former husband who was living at the second marriage and from whom she had never been divorced. The only evidence contained in the record tending to establish that, at the time of her marriage with defendant, complainant had a husband living, is that given by complainant in cross-examination by defendant's counsel. This was, in substance, that complainant was married to one Albert Thurber, in Menard county, Illinois, on the twenty-sixth day of July, 1866; that they lived together three months; that said Thurber then deserted her and went away; that about a year after the separation, and some time in 1867, she received a letter from him, and that from that time to the trial in August, 1884, she had not seen him or heard from him; that she had heard rumors at one time that he was dead, and another that he was alive, and another that he was married again. No other witness testified in regard to the matter under consideration, or to any circumstances having any bearing thereon, and no other evidence was offered.

The marriage of complainant with the defendant is shown to have been solemnized in the month of February, 1874, over six but less than seven years after the last knowledge of the former husband, and it is contended that, as the law presumes the continuance of life where the time of the absence has not extended to seven years, this presumption must control, and therefore the marriage in issue is void. It has been repeatedly held that mere rumor that the absent party is dead or living cannot be received in evidence, either to aid or rebut the presumption of life. The case of the defendant, as made by his amendment to his answer, therefore rests solely upon this supposed presumption of the living of the former husband at the time of the last marriage. The general presumption is that life continues for seven years after the party is last heard from, and after the lapse of that time death is presumed; but the presumption is not conclusive, is presumptio juris only, and may be rebutted by proof of facts and circumstances inconsistent with and sufficient to overcome it. Under the rule seven years must elapse before the presumption of death arises; when the seven years have elapsed, the fact of death is presumed, but there is no presumption that the life continued through the entire period, or that it was or was not extinguished at any particular time within it. That is, the law raises no presumption as to the time when, within the seven years, the death in fact occurred. 1 Greenl. Ev. § 41; Bish. Mar. & Div. §§ 452-456. It is also clear that the jury may find the fact of death from the lapse of a much shorter period than seven years, when the circumstances of the particular case raise the presumption of death. Greenl. Ev., supra. But if the law raises the presumption that the former husband was alive at the date of the last marriage, from the fact that seven years had not then elapsed since the last knowledge of him, it also, in the absence of proof to the contrary, presumes that the parties, in contracting such marriage, and in subsequently cohabiting, were innocent of immorality or crime, and that there was no legal impediment to its consummation. When a marriage is shown in fact, the law raises a strong presumption in favor of its legality, and the burden is with the party objecting to its validity to prove that it is not valid. Bish. Mar. & Div. §§ 457, 458. Presumptions of this class are not conclusive, but are sufficient in general to shift the burden of proof. 1 Greenl. Ev. §§ 33, 35. These presumptions of innocence and of the validity of the marriage conflict with the presumption of life; and if neither presumption is aided by proof of facts or circumstances co-operating with it, the presumption of the validity of the marriage has generally been held to be the stronger, and to prevail over the presumption of the continuance of the particular life; and this is so held although the time elapsing between the last knowledge of the former husband and the second marriage is much less than seven years. Rex v. Twyning, 2 Barn. &. Ald. 386, was a case where these conflicting presumptions came under consideration. The wife of a soldier, who went abroad, married again in a little over a year, and the question was as to the legitimacy of the children of this second marriage. The court said:

‘The law presumes the continuance of life for seven years, but it also presumes against the commission of crime. It is contended that the death of the husband ought to have been proved, but the answer is that the presumption of law is that he was not alive when the consequences of his being so is that another person has committed a crime.’

In Yates v. Houston, 3 Tex. 449, four years only had elapsed after the disappearance of the wife before the husband and another woman appeared as husband and wife under circumstances raising the presumption of marriage, and, in considering the subject of the conflicting presumptions, the court held that ‘the rational presumption after this lapse of...