Lewis v. Lewis
| Citation | 60 Okla. 60,158 P. 368,1916 OK 351 |
| Decision Date | 21 March 1916 |
| Docket Number | Case Number: 6144 |
| Parties | LEWIS et al. v. LEWIS |
| Court | Supreme Court of Oklahoma |
¶0 1. Divorce-- Right of Action--Insane Defendant.
Action for divorce or alimony alone, for any of the causes for which divorce may be granted, may be maintained against an insane defendant, represented by guardian, where it appears that the acts constituting the grounds of divorce were committed by such defendant prior to his becoming insane.
2. Marriage -- Validity -- Presumption and Burden of Proof.
A second marriage being shown as a fact, a strong presumption is raised in favor of its legality, which is not overcome by mere proof of a prior marriage. The party attacking such second marriage has the burden of proof to show that neither party to the first marriage had obtained a divorce, even though this involved the proving of a negative.
Error from District Court, Alfalfa County; James B. Cullison, Judge.
Action by Nancy Lewis against Jacob M. Lewis and another; Hattie A. Lewis intervening. Judgment for plaintiff, and defendant and intervener bring error. Affirmed.
Parker & Simons, L. A. Salter, and R. M. Chase, for plaintiffs in error.
Partridge & Wiles, for defendant in error.
¶1 This action was commenced in the district court of Alfalfa county on February 26, 1913, by Nancy Lewis, as plaintiff, against Jacob M. Lewis, an insane person, and Sarah E. Lewis, his guardian, for alimony. In the petition it is alleged that plaintiff and Jacob M. Lewis were married in the state of Kansas in August, 1906, and lived together as husband and wife until December of that year, when, by reason of his extreme cruelty and gross neglect of duty, she separated from him; that at the time of such marriage she owned and possessed personal property of the value of $ 400, which was sold by the said Jacob M. Lewis, and the proceeds appropriated to his own use; that said defendant Jacob M. Lewis is the owner of personal property of the value of $ 6,000 or $ 7,000, in the custody and control of his guardian, and also of certain real property. There was prayer for judgment for $ 400, the value of the personal property of the plaintiff alleged to have been appropriated by defendant, and for alimony, attorney's fees, etc. On May 19, 1913, an order was made requiring defendants to pay into the registry of the court within ten days $ 75 suit money for plaintiff, $ 75 attorney's fees, and during the pendency of the action $ 15 per month temporary alimony. In compliance with this order the defendant guardian paid the sum of $ 225. Thereafter Hattie A. Lewis was permitted to intervene in said cause, and in her petition, duly verified, set forth that she was the wife of the defendant Jacob M. Lewis, to whom she was lawfully married on November 25, 1891, in Mercer county, Mo., and that she lived with him until about November 1, 1902; that in October, 1902. he became insane and wandered away from home; that such marriage never had been dissolved; that at the time of the alleged marriage of the plaintiff to defendant plaintiff was 55 years of age, and defendant 37; that defendant was at that time insane and incapable of contracting marriage; and that such marriage was void for the reason that defendant and intervener were husband and wife.
¶2 The defendant, Sarah E. Lewis, answered alleging that Jacob M. Lewis had been insane since the year 1901, and was mentally incapable of contracting the alleged marriage with plaintiff; that plaintiff was not and never had been the lawful wife of said Jacob M. Lewis, by reason of the fact that at the time of her pretended marriage to him he had a living wife in the person of the intervener, Hattie A. Lewis, to whom he was lawfully married in November, 1891, and from whom he had never been divorced. She denied upon information and belief that at the time of her alleged marriage to Jacob M. Lewis the plaintiff was the owner of the personal property referred to in the petition, or that he appropriated the same as therein alleged, and alleged that the said Jacob M. Lewis was adjudged insane on September 16, 1909, and was confined in a hospital for the insane at Ft. Supply, Okla., and prayed that the pretended marriage between the plaintiff and said defendant be declared void.
¶3 There was no issue of either marriage. the only evidence relative to a dissolution of the first marriage, of defendant and the intervener, was the testimony of Hattie A. Lewis that she was still the wife of defendant; that she had never been divorced from him, although she stated that he had instituted proceedings for divorce against her in the county of her residence in Missouri, to which she filed no answer and paid no attention; that she heard that said case was "throwed out"; that she made no effort to locate him, and knew nothing concerning him during the years of his absence and until after the institution of this action, when she was informed by an uncle of the defendant that he had been married to plaintiff. It was shown by the evidence that the defendant Jacob M. Lewis in the 20 years of his separation from intervener had lived in many jurisdictions.
¶4 The court found:
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