Miller v. Wiggins

• Decision Date: 04 October 1921
• Docket Number: 24088
• Citation: 90 So. 109,149 La. 720
• Court: Louisiana Supreme Court
• Parties: MILLER et al. v. WIGGINS, Sheriff, et al

90 So. 109

149 La. 720

MILLER et al. v. WIGGINS, Sheriff, et al

No. 24088

Supreme Court of Louisiana

October 4, 1921

Rehearing Denied October 31, 1921

Appeal from Sixteenth Judicial District Court, Parish of Evangeline B. H. Pavy, Judge.

Action by Dayo Miller and others against R. Lee Wiggins, Sheriff and others, in which Caroline Guillory Miller and another intervened. Judgment for the defendants, and the plaintiffs appeal.

Affirmed.

Garland & Garland and R. Lee Garland, all of Ville Platte, for appellants.

L. Austin Fontenot and E. B. Dubuisson, both of Opelousas, for appellees.

OPINION

Statement of the Case.

MONROE C. J.

Plaintiffs, seven in number, appearing as the children and sole legal heirs of Jean Pierre Miller, deceased, issue of his marriage with Florestine Fusilier, his predeceased wife, proceeded by rule against the sheriff and ex officio tax collector of the parish of Evangeline, requiring him to show cause why they should not be put in possession, without paying any inheritance tax, of a certain tract of land which had belonged to the community of acquits between their parents, and of other tracts which their father had acquired after the death of their mother. And thereupon Caroline Guillory Miller and Octave Miller, an emancipated minor, intervened in the proceeding, by way of opposition, alleging:

That Jean Pierre Miller obtained a judgment of separation a mensa et thoro from Florestine Fusilier on October 15, 1895, and that, on March 15, 1898, the opponent first named was married to him, on his representation that he had obtained a final divorce from Florestine Fusilier, and that opponent acted in absolute good faith, believing him to be a divorced man, both from his "representations and those of others in whom she had confidence, and she lived with him as his wife from the date of their marriage, as aforesaid, to the time of his death, all the time believing that she was his true and lawful wife * * *; that there were born to opponent, * * * as the result of said marriage, two children, namely Octave Miller and a minor, Rovilion [who died after the filing of the opposition]; * * * that all of the property described in the aforesaid application * * * was acquired during his (decedent's) putative marriage with opponent, save * * * the property described in paragraph 1 [which was acquired during the first community], * * * and fell into the community * * * which existed between them, and that therefore she is entitled to an undivided one-half of said property, and the two children born of said putative marriage * * * are entitled to their pro rata share with the children of the first marriage, in the other half of the property."

The paramount (and, it may be said, only) question of practical importance that the case presents, therefore, is whether Caroline Guillory (at that time widow of Ozeme David, with five children, issue of their marriage) contracted the marriage with Miller in the honest belief that he had been finally divorced from Florestine Fusilier and was free to marry again.

Miller, Fusilier, and Guillory appear to have been illiterate; the two first named were married in 1882, and affixed their marks instead of their signatures, to the proces verbal of their marriage; and Guillory affixed her mark to the marriage contract which she and Miller entered into in 1898, to which he appears to have signed his name, though it does not appear that his knowledge of writing went farther than that; and the same may be said of a large proportion of the 25 or 30 witnesses who were examined in the case. Their ignorance of legal terms and proceedings was profound; so much so that one of the counsel remarked, in the course of the trial, that they seemed to think that a divorce was something that might be carried around in a basket, and Florestine Fusilier's reason for believing that Miller had not obtained a divorce from her seemed to be that she had never consented to, and had not "signed," it. Apart from that, the facts disclosed by the record are: That Miller and Fusilier were married in 1882 and lived together for seven or eight years, at the end of which time he left her and they lived separate for (probably) some months; that they then again lived together for three or four years, when he again left her, and, on December 2, 1894, brought suit for separation from bed and board, alleging that she abused and vituperated him, was of a jealous disposition, was never pleased with what he did, and that their living together had become unendurable. He also prayed for the custody of their seven minor children. There is testimony to the effect that a deputy sheriff called at her place of residence and offered to serve papers of some kind on her, and that, upon her refusal to receive them, he left them; but she was unable to read them; she had no money; she lived 20 miles from the courthouse, with no means of getting there, and so, she made no appearance in the case for nearly two years, at the end of which, on September 3, 1896, the following answer was filed on her behalf by a respectable member of the bar. to wit:

"That she admits her marriage to the plaintiff but denies all the other allegations of said petition. Wherefore she prays to be hence dismissed, with costs; and for all and general relief."

What evidence was offered does not appear, but on October 15, 1896, there was judgment for plaintiff, decreeing a "separation a mensa et thoro," condemning defendant to pay the costs, and concluding as follows:

"This done, read, and signed in open court, this 15th day of October, A. D. 1896, at chambers by consent of all parties."

And we find a return by the sheriff showing that a copy of the judgment so rendered was served on defendant on February 25, 1898. One of the witnesses called by opponent (Landry Soileau) gave the following testimony:

"She [Florestine] told me that she wanted to get information; that she had got a notice that Jean Pierre Miller was claiming a divorce, and claiming the seven children; if it was only the divorce, she did not mind. but. if it was for the children she did not want to let them go."

Other witnesses called by plaintiffs in rule testified that she always said that there had been no divorce; that she had never "signed," or consented to, a divorce; and others again testified that Miller told them, and that it became generally believed, that he had obtained a final divorce.

The opponent was asked how it was that she married Miller, knowing that his former wife was living, and her answer and examination as a witness proceeded in part, as follows:

"A. Because he had told me that everybody would tell me -- he came for a good time before and then he told me that he was going to get a divorce, to get married to me, and then he came and told me the divorce was complete and he was ready to get married. Q. When he asked you to marry him, did you speak to your father about it? A. Yes, sir; certainly; my father told me he was divorced, and it was only that hindered me to marry him; * * * he was divorced. Q. Then, when you married him, you married him as a divorced man. A. I am certain he was divorced, because the day I was married he gave me a certificate of his divorce, and then he gave it to the judge, and he read it to me, and he translated it in French for me, and I am certain that he was divorced; and that paper was in my papers and it stayed until he was on his deathbed, and it is not there any more; I have had papers taken away from there * * * Q. Are you educated -- can you read and write? A. No, sir. Q. Were any of your relatives present on the day that you were married, and if so, who? (Objection and ruling.) A. Yes, sir; there was my brother, Octave Guillory, and two others -- Paul Fusilier and Alpheus Fusilier -- and the wife of Paul Fusilier, my sister, and the wife of Achille Fontenot were there."

On cross-examination the witness gave the following, with other, testimony:

"Q. I believe you testified that Jean Pierre Miller told you that he was suing his wife for a divorce? A. Yes, sir. Q. And he was paying attention to you at that time? A. He was visiting me -- he said he had neglected a little thing, in finishing it, and he would finish it. Q. He told you when he finished his divorce, he would...