Olivari v. Clark

• Decision Date: 25 May 1936
• Docket Number: 32155
• Court: Mississippi Supreme Court
• Parties: OLIVARI v. CLARK et al

168 So. 465

175 Miss. 883

OLIVARI v. CLARK et al

No. 32155

Supreme Court of Mississippi

May 25, 1936

Division A

1 PLEADING.

Where petitioner claimed entire estate as only child and sole heir of intestate father, refusal to allow petitioner to amend petitions, so as to strike allegations that, before petitioner's conception and birth, intestate and petitioner's deceased mother entered into common-law marriage contract in Mississippi, and insert words that intestate and deceased mother were married in Alabama, held not error, where proposed amendment contradicted proof offered to support original averments and was not proposed until after conclusion of testimony and arguments.

2 MARRIAGE.

Under statute expressly requiring a license as essential to validity of marriage, attempted common-law marriage alleged to have been contracted in Mississippi before adoption of amendment providing that requirement should not invalidate any marriage good at common-law was void (Ann. Code 1892 sec. 2864; Code 1906, sec. 3249).

HON. D. M. RUSSELL, Chancellor.

APPEAL from chancery court of Harrison county HON. D. M. RUSSELL, Chancellor.

Proceeding in the matter of the estate of Vincent J. Olivari, deceased, wherein V. J. Olivari, Jr., filed petitions alleging to be the only child and sole heir at law of the deceased, and so entitled to his entire estate. J. E. Clark and others answered the petitions, and from a decree dismissing the petitions, petitioner appeals. Affirmed.

Affirmed.

R. A. Wallace, of Gulfport, for appellant.

The fact of marriage cannot be established by proof of general reputation, and it is not competent to introduce evidence of general reputation to disprove the existence of the marriage.

Henderson v. Cargill, 31 Miss. 367; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Greenleaf on Evidence, page 119, sec. 103; Rex v. Eriswell, 3 Term. R. 307; Gregory v. Baugh, 4 Ran. 711.

The court erred in denying leave to the petitioner, appellant here, to amend his petition to correspond with and conform to the proof made in the case, he having moved the court for such leave before the case was closed.

The pleader erred in stating in the petition that the appellant's father and mother entered into a marriage contract in Biloxi, Mississippi, prior to the year 1903; that there was no ceremonial marriage joining the appellant's father and mother as husband and wife; and that the contract so entered into by them was in all respects legal and lawful as a common law marriage under the laws of the State of Mississippi. The evidence introduced in the case shows conclusively that such averments are erroneous. By the motion to amend, the appellant sought to strike out the erroneous averments, and substitute therefor the averment that "in the year 1903, the petitioner's father, Vincent John Olivari, and his mother, Mrs. Eva Elizabeth Lyons Olivari, were married in the State of Alabama," to conform to the proof made.

Campbell v. Gullatt, 43 Ala. 57; Fuquay v. State, 114 So. 898; McClurkin v. McClurkin, 90 So. 917.

If it be true, as the learned Chancellor held it to be, which we do not concede, that the laws of this state, in effect in the year 1903, prohibited the marriage shown by the uncontradicted evidence to have existed between the parents of the appellant from the year 1903 to the year 1912, when his mother died, then, the law presumes they entered into a valid marriage contract in Alabama, the place of the residence of the mother, and where both ceremonial and common law marriages were legal; and this presumption strengthens the evidence for the appellant that is relied upon to support the motion to amend the petition.

Lapsley v. Grierson, 1 H. L. Cas. 498; Schuchart v. Schuchart, 61 Kan. 597, 60 P. 311.

The decisions are almost unanimous in holding that marriage is a civil contract between a man and a woman to be husband and wife, but, when executed, it becomes a status, or relation, between them, which cannot be dissolved except by judicial decree or death; and that, when that status, or relation, between a man and woman is established by competent evidence, the law presumes a valid agreement between them at the inception of the marriage, and that they were duly married.

38 C. J. 1272, sec. 1; Henderson v. Cargill, 31 Miss. 367; Dickerson v. Brown, 49 Miss. 369; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Succession of St. Ange, 109 So. 909; Oliphant v. Long Leaf Lbr. Co., 112 So. 500; Jewell v. Jewell, 42 U.S. 219, 11 L.Ed. 108; Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865; Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826.

It is a principle of universal application that a marriage valid where made is valid everywhere, except those that violate the expressed public policy of a state.

We respectfully submit that the testimony in this case, standing uncontradicted by competent testimony as it does, is amply sufficient to establish a valid marriage, wheresoever it was contracted, and whether it be classified as a common law marriage or ceremonial marriage.

18 R. C. L., pages 421, 422, 423 and 424, sections 46, 47, 49 and 51; Henderson v. Cargill, 31 Miss. 367; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Succession of St. Ange, 109 So. 909; Oliphant v. Long Leaf Lbr. Co., 112 So. 500; Jewell v. Jewell, 42 U.S. 219, 11 L.Ed. 108; Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865; Nims v. Thompson, 83 Wis. 261, 53 N.W. 502.

It is respectfully submitted that the trial court erred in denying the appellant leave to amend his petition.

Section 391, Code of 1930; Russell v. Denson, 98 Miss. 859, 54 So. 439; Greenwood Gro. Co. v. Bennett, 101 Miss. 573, 58 So. 482, 598; Hart v. Potter, 80 Miss. 796, 31 So. 898.

It should be borne in mind that the facts established by the uncontradicted testimony in this case raises one of the strongest presumptions known to the law, and, standing unrebutted as it does, it is conclusive that a valid marriage existed between the appellant's parents at the time he was born.

18 R. C. L. 416, sec. 39; 38 C. J. 1321, sec. 98; Jewell v. Jewell, 42 U.S. 219, 11 L.Ed. 108; Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826; Travers v. Reinhardt, 205 U.S. 423, 51 L.Ed. 865; Henderson v. Cargill, 31 Miss. 367; Floyd v. Calvert, 53 Miss. 37; McAllum v. Spinks, 129 Miss. 237, 91 So. 694; Sims v. Sims, 122 Miss. 745, 85 So. 73; Sykes v. Sykes, 162 Miss. 487, 139, So. 853; Succession of St. Ange, 109 So. 909; Oliphant v. Long Leaf Lbr. Co., 112 So. 500; Howard v. Kelly, 111 Miss. 285, 71 So. 391, Ann. Cas. 1918E, 1230.

Whatever directions marriage statutes may give respecting its formation or solemnization, the majority of the courts have held a marriage good notwithstanding the statutes, unless they contain express words of nullity.

18 R. C. L. 397, sec. 18; Reed v. Harkrader (9th C. C. A.), 834; Meister v. Moore, 96 U.S. 76, 24 L.Ed. 826; Travers v. Reinhardt, 205 U.S. 423, 27 S.Ct. 563, 51 L.Ed. 865; Furth v. Furth, 97 Ark. 272, 133 S.W. 1037, Ann. Cas. 1912D, 595, 598-602; Huard v. McTeigh, 113 Ore. 279, 232 P. 658, 39 A. L. R. 528, 538-550.

The attention of the court is directed to the last paragraph of Section 2367 of the Code of 1930, which is as follows. "The failure to comply with the provisions of this section shall not affect the validity of any marriage duly solemnized, followed by cohabitation, nor the validity of common law marriages as heretofore recognized in the state." The language of the statute undoubtedly means common law marriages that were recognized, first, by this honorable court in its decisions, and, next, by the Legislature prior to the enactment of this code section.

Hargroves v. Thompson, 31 Miss. 211; Henderson v. Cargill, 31 Miss. 367; Carson v. Carson, 40 Miss. 349; Dickerson v. Brown, 49 Miss. 357; Rundle v. Pegram, 49 Miss. 751; Taylor v. State, 52 Miss. 84; Floyd v. Calvert 53 Miss. 37; Sims v. Sims, 122 Miss. 745, 85 So 73; Sykes v. Sykes, 162 Miss. 487, 139 So. 853.

Mize, Thompson & Mize, of Gulfport for appellees.

Where both parties to an alleged marriage contract are deceased, the status must be proven by circumstances tending to either prove or disprove the marriage relation. The general repute as to how the parties to the alleged relation were looked upon by their neighbors and acquaintances is admissible in evidence. The rule is that the parties must be generally recognized as man and wife to give validity to a so-called common law marriage and the rule even goes further and says that if the reputation in the community to which the parties are known is divided, that the presumption is that there was no valid common law marriage.

1 Jones Commentaries on Evidence (2 Ed.), page 99; Schwingle v. Keifer, 105 Tex. 609; Reed v. State, 205 S.W. 619; Whittaker v. Schenault, 172 S.W. 202; Grigsby v. Reib, 153 S, W. 1130.

The allowing of an amendment is discretionary with the court. Unless this discretion is abused, the chancellor's actions will not be disturbed. The trial of the case had gone on for several days and was long and tedious. Had the first amendment been allowed, it would have rendered the petition demurrable and the respondents could have shown that it was in such vague and indefinite terms that they would have been entitled to a bill of particulars setting up where the marriage took place and when it took place. The court did not abuse its discretion in refusing the first amendment. Had the petitioner stated, as the court asked, where the marriage took place and when it took place, the respondents would not have had to go to further trouble for a bill of particulars. Every one would have been greatly inconvenienced, out a lot of expense and court costs if the amendment had been allowed. As stated before...