Smith v. Smith, 7 Div. 835.

• Decision Date: 26 July 1945
• Docket Number: 7 Div. 835.
• Parties: SMITH v. SMITH.
• Court: Alabama Supreme Court

23 So.2d 605

247 Ala. 213

SMITH v. SMITH.

7 Div. 835.

Supreme Court of Alabama

July 26, 1945

Rehearing Denied Oct. 25, 1945.

W D. DeBardelaben, of Anniston, for appellant.

Merrill, Merrill & Vardaman, of Anniston, for appellee.

The bill (originally filed May 5, 1944) as amended seeks annulment of complainant's marriage upon these grounds: 1. That respondent was the divorced wife of Kenneth O. Chesser, the divorce having been granted October 19, 1942 and she married the complainant in the State of Georgia on November 9, 1942, in violation of the law and the provisions of the decree. 2. Respondent fraudulently represented to complainant that she was able to bear children, and fraudulently concealed the fact that she was unable to bear children. 3. The decree divorcing respondent from her former husband, Chesser, was illegal and void for that no legal service of said suit was made upon said Chesser. 4. That the bill of complaint in the case of respondent against said Chesser did not charge or allege any legal ground of divorce.

The affidavit of non-residence filed in the case of Sarah E Chesser v. Kenneth O. Chesser, in the Circuit Court of Calhoun County, Alabama, in equity, is as follows:

'Before me, the undersigned authority, in and for said State and County, personally appeared James L. Carter, Attorney for Complainant, who being by me first duly sworn, deposes and says: That he is the Attorney for the Complainant in the foregoing styled cause, and that Kenneth O. Chesser, the respondent, is over the age of twenty-one years and is a non-resident of the State of Alabama, and his place of residence as last known was St. Louis, Mo., and that his present post office address cannot be ascertained after reasonable efforts to ascertain the same on the part of the complainant, all to the best of his knowledge, information and belief.

James L. Carter,

Attorney for Complainant.

Sworn to and subscribed before me on this the 11 day of August, 1942.

J. H. Dobbins, Register.

Filed in Office Aug. 12, 1942.

J. H. Dobbins, Register in Chancery.'

The following is the certificate of publication:

'Personally appeared before me Harriet Esco who being sworn makes oath that she is Managing Editor of The Anniston Times, a weekly newspaper published in Anniston, Calhoun County, Alabama, and that the attached notice was published on the following dates: August 14, 21, 28 and September 4, 1942.

Harriet Esco.

Sworn to and subscribed before me this 17 day of October, 1942.

Lucy F. Roberts,

Notary Public.

Sarah E. Chesser, complainant,

vs.

Kenneth O. Chesser, Respondent

In the Circuit Court of Calhoun County, Alabama. In Equity.

Kenneth O. Chesser is hereby notified that unless he appears and pleads in this cause by the 14th day of September, nineteen forty-two, a decree pro confesso may be taken against him thirty days thereafter.

Eleventh day of August, nineteen forty-two.

J. H. Dobbins, Register.

Filed in Office this the 17 day of October, 1942.

J. H. Dobbins, Register.'

The decree pro confesso on publication is as follows:

'Sarah E. Chesser

VS

Kenneth O. Chesser

Circuit Court of Calhoun County, in Equity.

In this cause it appearing to the Register that the order of publication heretofore made in this cause, was published for four consecutive weeks commencing on ... day of August, 1942, in the Anniston Times, a newspaper published in Calhoun County, Alabama, that a copy of said order was posted at the Court House door in Anniston on the 12 day of August, 1942, and it now further appearing to the Register that the said Kenneth O. Chesser has, to the date hereof, failed to plead, answer or demur to the Bill of Complaint in this cause it is therefore, on motion of the Complainant, ordered and decreed that the Bill of Complaint be, and is, in all things, taken as confessed against the said Kenneth O. Chesser.

This 19th day of October, 1942.

J. H. Dobbins, Register.' THOMAS, Justice.

The appeal is from a decree of annulment of marriage.

The appellant concedes the truth of the first aspect of the bill of complaint as last amended, that she married the appellee in Cedartown, Georgia, within sixty days following the granting of a divorce in her favor from her former husband, Kenneth O. Chesser. She further concedes, in view of the case of Brand v. State, 242 Ala. 15, 6 So.2d 446, that this ceremonial marriage was void, although at the time of the consummation of the same she did not know that her marriage to the appellee was illegal; that is, she concedes that it was void due to the fact that it was consummated within sixty days after the granting of a divorce in her favor from her former husband, Kenneth O. Chesser.

In support of assignment of errors 1 and 2, appellant insists that although her ceremonial marriage be void, nevertheless, she became the lawful wife of appellee through a common-law marriage, and was such lawful wife at the time of the filing of the original bill of complaint in this cause, previous thereto, and still is at this time. The appellant in her answer to the original bill of complaint admitted that she married the appellee in Cedartown, Georgia, on November 9, 1942. Upon oral examination before the court, she testified in substance as to the common law marriage feature of this case, that within two weeks following the marriage of the appellant and the appellee, the appellee was inducted into the army; that during the two weeks immediately after the marriage of the appellant and appellee, and before his induction into the army, they lived together in Anniston, Alabama, and slept in the same bed; that upon the induction of the appellee into the army, he was first stationed at Fort Bragg, North Carolina, and that she did not accompany him there. The appellant further testified that after the appellee was inducted into the army, he first returned to Anniston, Alabama, in July, 1943, on a furlough from the army, at which time he stayed two weeks; that during this period in July, 1943, the appellant and appellee slept in the same bed as husband and wife, and during this time had sexual intercourse on several different occasions; that during July, 1943, the appellee held the appellant out to the public as his wife; that during this period of time, they went several places together; that they went to see all of the people of the appellee, and he, on these occasions, held out the appellant as his wife, and that they went to the movies several times during this time; that when the appellee was in Anniston in July of 1943, he never questioned their marriage at all; and that she did not know anything about the appellee questioning their marriage until the proceeding for annulment of the marriage came up. The appellant further testified that she is getting an allotment from the government on account of her marriage to the appellee; and that the appellee told the appellant that he was tired of having an allotment paid to her, and that he wanted to have it discontinued, and that is the reason he wanted an annulment of the marriage.

With reference to the common law marriage feature of this case, the appellee testified in substance that when he was in Anniston, Alabama, on furlough in July, 1943, he slept in the same bed with the appellant on one or two nights, but absolutely had no marital relations with her, and that he had not seen her since July of 1943; that the last time he had sexual intercourse with the appellant was on November 22, 1942, the night before he went into the army the next day; that he first learned their marriage was illegal on the 10th of October, 1943, or about that time; that upon his last visit to Anniston in July, 1943, he saw the appellant on several occasions, but soon discovered that she did not love him or ever want to live with him again, and all she wanted was the allotment she was getting from the government; and that on this occasion he did not have any sexual relations with her and did not live with her as her husband.

Relative to the common law marriage feature of this case, it was observed in Hill v. Lindsey, 223 Ala. 550, 137 So. 395, 397, 'It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment of their lawful union, the law presumes a common-law marriage.' To like effect is Prince v. Edwards, 175 Ala. 532, 57 So. 714, 715.

It is established in this jurisdiction that, 'Where parties who are incompetent to marry enter an illicit relation, with a manifest desire and intention to live in a matrimonial union, rather than in a state of concubinage, and the obstacle to their marriage is subsequently removed, their continued cohabitation raises a presumption of an actual marriage immediately after the removal of the obstacle, and warrants a finding to that effect.' Prince v. Edwards, supra.

'The decisions are that marriage may be contracted in this state by parties competent to so contract without ceremony or solemnization, by mutual and actual agreement and consent by the parties capable in law to that marriage relation, permanent and exclusive of all others, followed by cohabitation as man and wife and their mutual assumptions openly of marital duties and obligations.' Rogers v. McLeskey, 225 Ala. 148, 142 So. 526, 527.

In the last cited case it was further held that the conduct and declarations of the cohabiting parties during the time are admissible as a part of the res gestae of the cohabitation and illustrate the intention and act of the parties so cohabiting to be husband and wife, and that abandonment by the husband after common law marriage did not change the...