Snuffer v. Karr

• Decision Date: 19 June 1906
• Citation: 197 Mo. 182,94 S.W. 983
• Parties: SNUFFER v. KARR.
• Court: Missouri Supreme Court

94 S.W. 983

197 Mo. 182

SNUFFER v. KARR.

Supreme Court of Missouri, Division No. 1.

June 19, 1906.

1. APPEAL — FINDINGS OF FACT—ABSENCE OF EXCEPTIONS—EFFECT.

Where there is a finding of fact in a case at law, and no exceptions are taken thereto, the appellate court will either affirm or reverse the judgment, as, by its conclusions of law, it may be compelled to do on the facts found by the trial court.

2. EVIDENCE—JUDICIAL NOTICE—STATUTES OF SISTER STATE.

Courts cannot take judicial notice of statutes of a sister state, but the same must be proved as any other fact, and if it is a case wherein a finding of fact is made, such finding should show the existence of such statute.

3. MARRIAGE — STATUTES — EXTRATERRITORIAL FORCE.

Code Tenn. 1858, § 2438, providing that a second marriage cannot be contracted before the dissolution of the first, but the first shall be regarded as dissolved for this purpose, if either party has been absent for five years, and is not known to the other to be living, has no extra-territorial force.

4. SAME—CONSTRUCTION OF STATUTE.

The statute, property construed, applies only to the injured and innocent party to the marriage contract, and cannot operate to dissolve the bonds of matrimony where a husband domiciled in Tennessee left his wife for over five years and remained hidden in Missouri, during which time his wife was ignorant of his whereabouts.

5. SAME — STATUTORY REQUIREMENTS — LICENSE—NECESSITY.

Under Code Tenn. 1858, §§ 2436-2447, relating to the solemnization of marriages, and providing penalties for failure to comply therewith, but containing no words of nullification

a common-law marriage in Tennessee was good, although no license therefor, as required by the statute, was issued.

Appeal from Circuit Court, DeKalb County; A. D. Burnes, Judge.

Action by Emma Snuffer against John W. Karr. From the judgment, defendant appeals. Reversed.

R. A. Hewitt, Jr., and Jas. T. Blair, for appellant. W. H. Haynes, for respondent.

GRAVES, J.

This is an action for the recovery and admeasurement of dower. Plaintiff claims to be the widow of Isaac F. Snuffer. Upon motion the defendant, who through mesne conveyances, claimed a fee-simple title, through a deed signed by Isaac F. Snuffer, alone, a finding of facts was made by the trial court. This finding of facts is well supported by the evidence unless it is in some way shattered by reason of a statute of the state of Tennessee, which was introduced in evidence. The finding of facts which is, and was, as a matter of fact, made a part of the judgment herein, is as follows: "(1) That on the 16th day of February, A. D. 1860, Isaac F. Snuffer and Kate Wallace were married in the state of Tennessee, Claiborne county, and for a short time lived together as man and wife in said state. (2) That thereafter at the said state and county in the year 1860, said Isaac F. Snuffer abandoned his said wife, Kate (Wallace) Snuffer, and removed to the state of Missouri, and has continued to remain away from the state of Tennessee ever since, and that the said Kate (Wallace) Snuffer did not hear from him, the said Isaac F. Snuffer, after the year 1862. (3) That the said Kate (Wallace) Snuffer was living at the time of the institution of this suit, and had not remarried or been divorced. (4) That in the year 1881, Isaac F. Snuffer went with plaintiff (then aged 19 years and unmarried) to the state of California and there, in said year of 1881, went through a legal and common-law ceremony of marriage in due form with plaintiff. (5) That thereafter Isaac F. Snuffer lived with the plaintiff in this case as his wife, holding themselves out to the public as husband and wife, in the states of California, Washington, and Missouri, successively, until the year 1888, when he left plaintiff and the children born of the marriage and has not lived with her as his wife since. (6) That on the 4th day of September, 1900, Isaac F. Snuffer died in the state of Arkansas. (7) That Isaac F. Snuffer was seized of an estate in fee simple subsequent to the year 1881, and up to the ____ day of ____ A. D. 1893, when he alone, executed a warranty deed to said lands to Thomas Vanbebber, who later conveyed to this defendant in due form; and that the defendant, Karr, is now in possession of the said lands claiming title thereto in fee."

The Tennessee statute introduced in evidence herein above mentioned is as follows: "A second marriage cannot be contracted before the dissolution of the first. But the first shall be regarded as dissolved for this purpose, if either party has been absent for five years, and is not known to the other to be living." Upon this finding of fact the court entered judgment for the plaintiff in accordance with the prayer of her petition, appointing commissioners to admeasure her dower, which was done, and later the report of the commissioners approved and an assessment of damages had and a final judgment entered in favor of plaintiff. After unsuccessful motions for new trial and in arrest of judgment, defendant appealed.

So far as the record shows, neither party excepted to the finding of facts as made by the trial court. In this court defendant does not challenge the finding of facts, but contends that upon the finding of facts as made, the judgment should have been for him. Plaintiff, although judgment was for her, challenges the first finding of facts, and claims that there was no valid marriage in Tennessee. The trial court evidently proceeded upon the theory that there was a valid marriage of the deceased, Isaac F. Snuffer to Kate Wallace in the state of Tennessee in the year 1860, but that for the purpose of re-marriage the same had been dissolved by force of the statute aforesaid before his marriage to this plaintiff in the state of California. The marriage of Snuffer to the plaintiff is not attacked, except upon the ground that he was married at the time and that the marriage for that reason was void. Neither marriage was what might be termed purely statutory so far as the proof shows, but in each the rites of matrimony semed to have been solemnized; in the first by a Methodist preacher, and in the second by a justice of the peace in California. Defendant contends that the judgment must stand or fall upon this finding of facts, and that this court cannot go back of the finding of facts, and look into the evidence to determine whether such finding is supported by the evidence. On the other hand, plaintiff urges that this court should examine all the evidence, and if upon all the evidence, the judgment should be sustained, a judgment of affirmance should follow here. Plaintiff further contends that in the state of Tennessee what is known as a "common-law marriage" was not recognized in that state, and that this court should go back of the finding of facts, and find that there was no valid marriage in the state of Tennessee, thus validating the marriage in the state of California. This statement is sufficient for the discussion of all the points involved and urged in this controversy.

1. Under the finding of facts made by the court it appears that there was a marriage between Isaac F. Snuffer and Kate Wallace in the state of Tennessee in 1860. This finding was upon the evidence in the case, including statutes and other documentary evidence. Under the same finding the said Kate (Wallace) Snuffer is still living, and no divorce has ever been procured. The finding in no way suggests a dissolution of the marriage —not even by the statute introduced. With a valid marriage found from the facts, and no dissolution found by divorce, or otherwise, in the finding of facts, it is difficult to harmonize the judgment with the finding of facts. The statute introduced in evidence was nothing more than any other evidence in the case, and if the trial court expected to rely upon this bit of evidence for a dissolution of the marriage found to have existed, there should have been a finding: First, as to such marriage; and, then, a finding of the dissolution thereof by this statute. The trial court does not even find that there was such a statute, but leaves the finding of facts to be supplemented by this statute in order to maintain the judgment. With this defect in the finding of facts, and there being no exceptions saved and preserved by plaintiff as to the finding of facts, we might content ourselves by simply holding that, under the facts as found, the judgment cannot be sustained. Plaintiff urges that we go back of the finding of facts, and if upon the whole record the judgment is for the right party, we should affirm. This is not a case in equity, and, as we understand the rule, where there is a finding of facts, in a case at law, and no exceptions taken thereto as in this case, then we either affirm or reverse the judgment, as, by our conclusions of law, we may be compelled to do, upon the facts as found by the trial court. Loewen v. Forsee, 137 Mo., loc. cit. 38, 38 S. W. 712, 59 Am. St. Rep. 489; Freeman v. Hemenway, 75 Mo. App., loc. cit. 621. In the latter case it is said: "The correctness of the finding of facts may be assailed in the appellate court on the ground of there being no evidence to support it, or that it does not include all the issues, if the evidence is preserved by bill of exceptions. Nichols v. Carter, 49 Mo. App. 401. But we understand from a recent ruling of the Supreme Court, in order to assail such finding, exception must be taken and preserved by the objecting party. Loewen v. Forsee, 137 Mo. 38, 38 S. W. 712, 59 Am. St. Rep. 489. Defendants failed to save any exception to the finding or conclusion of law, and hence we cannot look into the evidence to ascertain whether it was a proper or complete finding on the issues. But the finding of facts and conclusions of law therein become a part of the record proper, and we will examine into them to see if the findings support the conclusion, although no exception is taken. Nichols v....