Jones v. Jones
| Decision Date | 10 April 1917 |
| Docket Number | 8750. |
| Parties | JONES v. JONES. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the original cross-petition in error, assigned as error the action of the court in overruling plaintiff's motion for a new trial, which motion contained as one of the grounds therefor that "the judgment of the trial court in finding the marriage between plaintiff and defendant was illegal and void is not sustained by sufficient evidence and is contrary to law," the petition in error may be amended after the expiration of the time in which such cross-appeal must be filed by adding an assignment that "the judgment of the court in finding the marriage between plaintiff and defendant illegal and void is not supported by sufficient evidence and is contrary to law.
The burden is upon the person who asserts the illegality of a marriage to prove such illegality, and, where a second marriage is shown as a fact, a strong presumption exists in favor of its legality, which is not overcome by mere proof of a prior marriage and that the wife had not obtained a divorce before her second marriage. The party attacking such second marriage has the burden of showing that neither party to the first marriage had obtained a divorce.
Section 4966, Rev. Laws 1910, authorizes the court, in any case where a divorce is refused, to make such order as may be proper equitable, and just for the disposition and division of the property of the parties or either of them, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.
Error from District Court, Creek County; Ernest B. Hughes, Judge.
Action by Lulu Jones against Jason Jones for a divorce and alimony in which defendant filed an answer and cross-petition. Petition dismissed, and marriage between the parties annulled, and a division of the property decreed between the parties, and from the decree of division defendant appeals and from that, and from the dismissal of the petition and the annulment of the marriage, plaintiff brings error. Decree annulling the marriage contract reversed, and in all other things affirmed.
Blake & Hazlett, of Tulsa, for plaintiff in error.
T. L Blakemore, of Sapulpa, for defendant in error.
Lulu Jones, as plaintiff, commenced this action against Jason Jones, as defendant, for a divorce and alimony. Defendant filed answer and cross-petition, in which he denied the allegations of plaintiff's petition, and, in addition to other matters, alleged that, at the time of the marriage between plaintiff and defendant, plaintiff was the lawful wife of one Lewis Morgan, and prayed an annulment of the pretended marriage between the parties on that ground. Upon a trial, the court found that plaintiff's prayer for divorce should be denied and dismissed her petition, and further found that the marriage between the parties was illegal and void because of plaintiff's prior marriage with said Morgan, and annulled and canceled the same and decreed a division of the property accumulated between the parties. From the decree dividing the property, defendant prosecutes an appeal, and plaintiff appeals from the decree denying her prayer for divorce and declaring the marriage contract null and void, and also appeals from the decree dividing the property.
In her original cross-petition in error, plaintiff assigned, among other things, that the court erred in overruling her motion for a new trial. On January 20, 1917, she filed an amended petition in error, in which, by way of amendment to her original petition, it was assigned that the court erred in finding that the marriage of the plaintiff in error and defendant in error was illegal and void, and that said finding is not supported by sufficient evidence and is contrary to law. Motion is made to strike the amended petition in error for the reason that same was not filed within four months from the rendition of the order appealed from, that being the time fixed by statute in which appeals must be taken from judgments granting a decree of divorce. Section 4971, Rev. L. 1910. The original petition assigned error upon the order overruling the motion for a new trial, and this was sufficient to present for review all of the questions raised in the motion for a new trial. Hodges v. Alexander, 44 Okl. 598, 145 P. 809; Rowsey v. Jameson et al., 149 P. 880. This assignment in the original petition in error was sufficient to present this question, as the motion for a new trial urged as one of the grounds therefor that the judgment of the court in finding that the marriage of the plaintiff and defendant was illegal and void is not sustained by sufficient evidence and is contrary to law. The amendment filed simply amounted to a formal assignment of a matter that was already embraced in the original petition and which might have been urged thereunder, and was simply an amendment as to form, and the motion to strike the amended petition in error is therefore overruled. McConnell v. Cory, 33 Okl. 607, 127 P. 259.
Plaintiff urges that the decree annulling the marriage contract is not supported by the evidence. Counsel have not set out an abstract of the testimony in their briefs, nor have they indexed the record as required by the rules of the court, and the work of preparing an opinion in this case has been attended with much more work than would have been required had counsel observed these rules, which are intended to lighten the labors of the court and expedite the disposition of business. Plaintiff and defendant were married in Bell county, Ky. in the month of May, 1903, and lived together as husband and wife until about November, 1915, when the separation occurred. No children were born to them. During the period of their cohabitation, by their joint efforts, they accumulated considerable property. Some years prior to her marriage with defendant, plaintiff had been married to one Lewis Morgan, from whom she separated about a year and a half or two years prior to the month of October, 1902. In October, 1902, a jury in the county court of Whitley county, Ky. found said Morgan to be insane, and on that date he was committed to an asylum for the insane at Lakeland, Ky. to which institution he was sent, where he died in 1906. Plaintiff testified that she never obtained a divorce from Lewis Morgan and did not know whether he had obtained one from her. Other witnesses testified that they had known Morgan intimately, and that, so far as they knew, he had never obtained a divorce from plaintiff, and that, had he obtained such divorce, they would have known it. At the time plaintiff and Morgan separated, they were living in Tennessee, and, immediately after the separation, both of them went to Whitley county, Ky. and established a residence which was maintained by each of them until Morgan was adjudged insane and sent to the asylum. Under the statutes of Kentucky, a residence of one year in that state is required before an action for divorce may be commenced. Ky. Stat. 1903, § 2120. It is conceded by both parties that approximately 1 1/2 years elapsed between the time plaintiff and Morgan separated and the time that Morgan was adjudged insane. This would allow 6 months within which he could have secured a divorce under the laws of that state which must have been obtained, if obtained, by him in Whitley county. There is no proof that such a decree was not granted to Morgan in that county. Defendant insists that, plaintiff being a resident of such county, personal service must have been had upon her, and that she would have had knowledge thereof if a decree had been granted, and that a decree based upon service by publication would be void. We do not understand the law to be that a decree based upon service by publication is void, even though the party may have been a legal...
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