Lynch v. Rosenberger

• Decision Date: 09 October 1926
• Docket Number: 26,592
• Citation: 249 P. 682,121 Kan. 601
• Parties: MARION LYNCH, Appellee, v. HARRIETT ROSENBERGER et al., Appellees, and JACOB RAY LYNCH, Appellant
• Court: Kansas Supreme Court

249 P. 682

121 Kan. 601

MARION LYNCH, Appellee, v. HARRIETT ROSENBERGER et al., Appellees, and JACOB RAY LYNCH, Appellant

No. 26,592

Supreme Court of Kansas

October 9, 1926

Decided July, 1926.

Appeal from Sumner district court; OLIVER P. FULLER, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. BASTARDS--Evidence of Paternity--Testimony of Mother as to Nonaccess of Husband. In an action for partition, where an issuable fact was the paternity of one of the claimants, the evidence of the mother was competent to prove nonaccess of her husband.

2. SAME--Evidence of Paternity--Mother's Testimony Admissible. And, further, where the evidence of the mother considered in connection with other evidence, showed conclusively that the husband was not the father of the claimant, it was error to refuse consideration of the mother's evidence.

D. N. Caldwell, James Lawrence and J. S. Dey, all of Wellington, for the appellant.

E. J. Taggart and John Bradley, both of Wellington, for the appellees.

Hopkins J. Johnston, C. J., Burch, Harvey, JJ., dissenting.

OPINION

HOPKINS, J.:

The action was one for partition. The defendant, Jacob Ray Lynch, claimed the whole of the estate of Jacob Lynch, deceased, as his illegitimate son. He was defeated and appeals.

The facts are told by the court's findings which are, substantially, as follows: Jacob Lynch, a resident of Sumner county, single, never having been married, died intestate November 7, 1922, owning certain land in Sumner county. The plaintiff and the defendants, except the defendant Jacob Ray Lynch, are sisters, nephews and nieces of Jacob Lynch, and are the owners of the property by the law of descents and distribution, unless it is found that Jacob Ray Lynch is the son of Jacob Lynch.

For some time prior to November 4, 1893, Gallantine Kinder and Lizena Kinder were husband and wife, and residents of Oklahoma. On November 4, 1893, Lizena Kinder brought an action in the probate court of Canadian county, Oklahoma, to obtain a divorce from Gallantine Kinder. And on December 24, 1893, the probate court of Canadian county entered a decree of divorce granting to Lizena Kinder a divorce from Gallantine Kinder.

Prior to August 14, 1893, probate courts in Oklahoma were vested by statute with jurisdiction in divorce cases, but on August 14, 1893, the legislature of Oklahoma deprived probate courts of jurisdiction in divorce proceedings and vested exclusive jurisdiction thereof in the district courts of Oklahoma. At the time of the filing of the petition by Lizena Kinder, the probate courts had no jurisdiction in divorce proceedings. And in 1894 the supreme court of Oklahoma decided that all divorces granted by the probate courts of Oklahoma after August 14, 1893, were void. Afterwards, in 1895, the legislature of Oklahoma passed an act declaring that all decrees of divorce granted by the probate courts prior to the passage of such act valid, binding and effectual.

After the divorce proceedings in Oklahoma, Lizena Kinder moved to Missouri, and Gallantine Kinder came to Kansas and went to work for Jacob Lynch. In June, 1895, he sent for his former, or then, present wife, and had her remove from Missouri to the Lynch farm, where she and Gallantine Kinder again assumed the marriage relation, going together for a short time with a threshing outfit, and after a few weeks both returned to the Jacob Lynch farm, where she did the house work and Kinder was employed by Lynch. They lived together at the Lynch place as husband and wife continuously until the latter part of 1898.

The claimant, Jacob Ray Lynch, was born on December 1, 1899, and there is evidence tending to show nonaccess between Gallantine Kinder and Lizena Kinder after January, 1899, until after the birth of the claimant. Such evidence tending to prove nonaccess of Gallantine Kinder does not satisfactorily or conclusively show nonaccess without including in such testimony the evidence offered by the witness Lizena Kinder.

"If the testimony of Lizena Kinder is to be considered in connection with the other testimony showing nonaccess, then it does satisfactorily and conclusively show that Gallantine Kinder is not the father of the claimant Jacob Ray Lynch. . . . Jacob Lynch prior to his death generally and notoriously recognized the claimant, Jacob Ray Lynch, as his son, by oral declarations publicly made."

Just where Gallantine Kinder was living for something like a year after the birth of the claimant does not clearly appear from any evidence, but the evidence does clearly show that in 1901 he and Lizena Kinder, with her then three children, moved from the Lynch place to another farm in Sumner county, known as the Doctor Spitler farm, resided there for a short time, then afterwards moved to a farm known as the Adrian Logan place, resided there a short time, just how long on either of the farms the evidence does not show; afterwards returned to the Jacob Lynch farm, and that they all remained on the Jacob Lynch farm until about the year 1906. In the year 1906 Gallantine Kinder left the Lynch farm and Lizena Kinder and the three children remained there until 1911, when they removed to Oklahoma, and that Gallantine Kinder lived with his family in Oklahoma, and died there about 1920.

The court concluded that Gallantine Kinder and Lizena Kinder were never divorced, and at the time the claimant, Jacob Ray Lynch, was begotten they were husband and wife; that the evidence of Lizena Kinder tending to prove nonaccess by her husband, at the time the claimant was begotten, was incompetent and should not be considered, and that the plaintiff and the defendants, excluding defendant Jacob Ray Lynch, were entitled to have the property in controversy partitioned according as their several interests appear.

The appellant argues that there was a divorce in fact between his mother, Lizena Kinder, and Gallantine Kinder that ended their family life; that they lived apart and understood that their family life was ended, and that whether the divorce was valid or not, it destroyed the family and all the presumptions that have their source in the family life.

We think it unnecessary to consider whether or not the Oklahoma divorce in question was valid, or whether the matrimonial status of Gallantine and Lizena as husband and wife was renewed by their voluntary act of again living together. The trial court concluded from the evidence that, "If the testimony of Lizena Kinder is to be considered in connection with the other testimony showing nonaccess, then it does satisfactorily and conclusively show that Gallantine Kinder is not the father of the claimant Jacob Ray Lynch," and that "Jacob Lynch, prior to his death, generally and notoriously recognized the claimant, Jacob Ray Lynch, as his son, by oral declarations publicly made."

The finding of the trial court establishes beyond question that Jacob Lynch was the father of the appellant, Jacob Ray Lynch, and that Gallantine Kinder was not. But following the Lord Mansfield rule, which has been approved and followed in many cases, the trial court determined that the evidence of the mother, which conclusively demonstrated the truth, was incompetent and could not be considered. Was it proper to exclude that evidence which, better than any other, demonstrated the truth of the proposition in issue? The ultimate fact in issue--the one controlling fact to be ascertained [121 Kan. 604] --was whether Jacob Ray Lynch was the son of Jacob Lynch. The action had been instituted, pleadings framed, trial had and evidence heard--all to ascertain the one ultimate controlling issuable fact. The means sanctioned by law for ascertaining in a judicial proceeding the truth respecting the question had been followed. The evidence, if considered, was controlling.

"'The rules of evidence,' says a discriminating writer, 'are the maxims which the sagacity and experience of ages have established, as the best means of discriminating truth from error.' (Wills Cir. Ev. 2.)" (1 Bouv. 1091.)

"Evidence signifies that...