McAllum v. Spinks

• Decision Date: 15 May 1922
• Docket Number: 22273,22272
• Citation: 129 Miss. 237,91 So. 694
• Court: Mississippi Supreme Court
• Parties: MCALLUM ET AL. v. SPINKS ET AL

91 So. 694

129 Miss. 237

MCALLUM ET AL. v. SPINKS ET AL

Nos. 22272, 22273

Supreme Court of Mississippi

May 15, 1922

1 PROCESS. Writ without seal of the court or a statement of the fact if court has no seal is bad on appeal by defendant served therewith.

On direct appeal a writ without the seal of the court, or a statement of the fact, if there were no seal, is bad.

2. DIVORCE. Where original subpoena issued does not show seal it will be presumed in a collateral attack upon the decree after thirty years that the court caused a proper subpoena to be executed.

In a collateral attack upon a decree of divorce after the lapse of over thirty years, where the original subpoena issued for the defendant does not show a seal of the court, it will be presumed that the court before granting the decree ordered a proper subpoena issued which was properly executed upon the defendant.

3 PROCESS. Return of sheriff on subpoena for defendant held not subject to collateral attack.

Where the return of the sheriff upon a subpoena for a defendant in a divorce suit reads as follows: "Executed by personal service and copy"---this is a substantial compliance with section 1527, Code 1880. At best, it was a mere irregularity, could have been amended if necessary in that suit, and cannot be attacked in a collateral proceeding.

4 MARRIAGE. Marriage duly proved presumed valid, though former husband of woman is still living.

A marriage duly proved will be presumed valid, although a former husband of the woman may be still living, and the burden of proof is upon the party asserting the invalidity of the marriage to prove that there has been no divorce of the former marriage.

5. MARRIAGE. How the fact of marriage may be proved.

The fact of marriage may be established by evidence of the acts and declarations of the parties, by proof of the general repute in the family, and by proof of the declarations of deceased persons, who were related to them by blood or marriage.

HON. E N. THOMAS, Chancellor.

APPEAL from chancery court of Humphreys county, HON. E. N. THOMAS, Chancellor.

Suits by Willis McAllum and by Pearl McAllum and others against L. P. Spinks and others. The suits were consolidated. Decree dismissing both bills, and the complainants appeal. Affirmed.

Decree affirmed.

Campbell & Campbell, for appellant.

Let us see what is the effect of the formal and ceremonial marriage entered into by and between William McAllum and Pearl McAllum. If either of the contracting parties are shown by the evidence to have previously married, the parties to the previous marriage will be presumed to have secured a divorce, or to have been dead at the time of the formal and ceremonial marriage. This is unquestionably the law as announced by our supreme court in the following decisions. Wilkie v. Collins, 48 Miss. 496; Railway Co. v. Beardsley, 79 Miss. 417; Sullivan v. Grand Lodge, 97 Miss. 218, Howard v. Kelly, 111 Miss. 285.

These cases are all Mississippi cases establishing the doctrine that where formal ceremonial marriage is shown the presumption is, that any previous marriage has been dissolved either by divorce or death.

The divorce proceedings in Kemper county of William McAllum v. Sue McAllum was not evidence of their marriage. See Williams v. Williams, 53 Amer. Rep. 262, et seq. The admissions of the parties of a marriage are admissible only as part of the res gestae and are only admissible, if the parties are cohabiting together as man and wife. See Rulin Case Law, vol. 18, sections 51 and 424; Note 22 Amer. Dec., pp. 161, 162; Myatt v. Myatt, 44 Ill. 472; Gaines v. Relf, 12 How. (U.S.) 472.

William McAllum entered into a formal and ceremonial marriage with Pearl McAllum on the 22nd day of August, 1919, as shown by marriage license and certificate in record, and when the impediment to their marriage was removed, and if they continued to live together as man and wife, the marriage was valid from the very minute the impediment was removed. See R. C. L., vol. 18, section 64, page 436. In the recent and last case of Sims v. Sims, 85 So. 73 our supreme court followed the text of R. C. L. supra and Judge SMITH on page 75 quotes from Bishop on Marriage, Divorce and Separation.

But, as appellant proved a ceremonial marriage between Pearl McAllum and Robert McAllum it was incumbent upon appellees and the burden of proof was upon them to show either that there had been no divorce between Pearl Howard and Robert Howard, or to prove that Robert Howard was living, before they could overcome the ceremonial marriage to William McAllum. 19 Amer. & Eng. Enc. of Law (2 Ed.) page 1206.

The text of Amer. & Eng. Enc. of Law cited supra is amply and fully sustained by a very able opinion of the court of last resort of Maryland. The case is that of Jones v. Jones reported in 30 American Reports, page 466 and discusses the question very ably and fully and we earnestly request this court to read the same. See also the case of Williams v. Williams, 53 Amer. Rep., page 253.

The marriage of Pearl McAllum to Robert Howard will be presumed by law under the Mississippi authorities, Wilkie v. Collins, 48 Miss. 496; Railway v. Beardsley, 79 Miss. 417 and Sullivan v. Grand Lodge, 97 Miss. 360, cited supra, to have been dissolved either by divorce or the death of Robert Howard.

Process, Form, Requisites, and Sufficiency of Return, Manner of Service. "The return should show clearly and fully the manner in which service was made, so that it may appear of record whether the statutory requirements as to the manner have been substantially complied with. 32 Cyc., page 503.

"Executed by personal service on the 20th day of March 1866 is an insufficient return. Davis v. Paty, 42 Miss. 810; Dogan v. Barnes, 76 Miss. 566.

Constructive Service of Summons--Judgment at Return Term. Under Code 1871 and under Code 1880 a judgment rendered on constructive service at the return term is void. Moore v. Hoskins, 66 Miss. 496.

The appellees then introduced the original summons, which showed the sheriff's return to be executed by personal service and copy. We do not think that this helped matters any as it did not show that a copy was handed to the defendant Neela McAllum.

The decree in the divorce suit of William McAllum v. Neela McAllum will be found in the record at page 253 does not recite that Neela was summoned by handing her a true copy nor does it recite any proof taken. The case of Barton v. Cramer, 86 So. 578 and also reported in 123 Miss. 848, decides that a judgment rendered on a writ without the seal of the court is utterly void and that the court has no jurisdiction of the person of the defendant.

The decree of the divorce of William McAllum and Neela McAllum being utterly void, and not merely voidable can be attacked collaterally. This decree being utterly void Neela, who is still living and whose depositions will be found in the record in vol. 2, p. 299, was the legal wife of William McAllum at the time of his death, and inherited all of his property. This woman Neela conveyed her interest to Campbell & Campbell which deed will be found at page -- of the record, and Campbell & Campbell, who are merely conduits of title conveyed the land to Pearl McAllum and for this reason Pearl McAllum is entitled to all the property of which William McAllum died seized and possessed. Pearl McAllum has deeded a one-sixth interest to Florence and Jab McAllum, therefore complainants are entitled to the relief prayed for in their original bill and the chancellor erred in dismissing the original bill.

Wells, Stevens & Jones, for appellants.

The chancellor erred in dismissing the bill of Pearl McAllum, wife No. five first, because the evidence in the case utterly fails to overthrow the presumption that she is the legal wife of William McAllum, deceased, she having proven that she was married to him in due form and ceremony on a license duly issued for that purpose, and returned duly executed.

The record in this case vol. 2, pages 7 to 95, inclusive contains undisputed testimony of a ceremonial marriage between William McAllum, deceased, and the appellant Pearl McAllum. In addition to that, at page 190, of the same volume of the record is a certified copy of a marriage license issued to these parties with a due and legal return thereon by the minister performing the ceremony of marriage between them.

Under this proof, therefore, every presumption will be indulged by law in favor of the validity of the marriage, and this presumption by law overcomes the presumption that any prior spouse of either party is living, or that either party had not been divorced from any prior spouse. See Spears v. Burton, 31 Miss. 555; Hull v. Rawls, 27 Miss. 471; Wilkie v. Collins, 48 Miss. 496; Railway Company v. Beardsley, 79 Miss. 417, 30 So. 660, 89 Am. St. Rep. 660; Sullivan v. Grand Lodge, 97 Miss. 218, 52 So. 360; Bennett v. State, 56 So. 780; Howard v. Kelly, 111 Miss. 285, 71 So. 391; Allan v. McIntosh Lbr. Co., 117 Miss. 156, 77 So. 909.

Therefore when the appellees in this case allege that the appellant Pearl McAllum, was not the legal wife of William McAllum, deceased, they have upon them, imposed by law, the burden of proof that one of these contracting parties, William or Pearl, was incapacitated to enter into a legal contract of marriage.

With reference to William McAllum's incapacity to marry, they undertook to prove that he was not divorced from his supposed second wife, Sue, but it is to be remembered that they did not at any time prove the marriage of Sue to William McAllum and the divorce proceedings between these parties in the chancery court of Kemper county was in no wise competent evidence of a marriage between them. See Allen v. McIntosh Lbr. Co., 117 Miss....