State Ex Rel. Foster v. Anders

• Decision Date: 16 November 1938
• Citation: 184 So. 515,135 Fla. 59
• Parties: STATE ex rel. FOSTER v. Anders
• Court: Florida Supreme Court

184 So. 515

135 Fla. 59

STATE ex rel. FOSTER v. Anders

Florida Supreme Court, Division B.

November 16, 1938

Error to Circuit Court, Duval County; Bayard B. Shields, Judge.

Mandamus by the State of Florida, on the relation of Marion Foster, a widow, against E. E. Anders, Chairman, Fred M. Valz and others, as members of and constituting the City Commission of the City of Jacksonville, Florida, and others, to compel participation in the Police Pension and Relief Fund. From a judgment for respondents, the relator brings error.

Affirmed.

COUNSEL

L. Raymond O'Steen, of Jacksonville, for plaintiff in error.

Austin Miller, Gov. Hutchinson, and Eli Finkelstein, all of Jacksonville, for defendants in error.

OPINION

PER CURIAM.

The State of Florida, upon the relation of Marion Foster, a widow, filed a petition in the Circuit Court of Duval County Florida, against the City of Jacksonville in which it was made to appear that she was the widow of the late Kirby Foster, who had been an active member of the Police Department of the City of Jacksonville, Florida, for a period of thirty-eight consecutive years prior to his death on January 24, 1934, and was eligible to participate in a Police Pension and Relief Fund of said City provided by Chapter 7657, Special Acts of the Legislature of 1917, and that the deceased not having a minor child under the age of eighteen years, or a mother or father dependent upon him, and the petitioner being the wife of the said Kirby Foster deceased, that she was, as a matter of law, entitled to participate in the Police Pension and Relief Fund as provided by Chapter 7657, supra, controlling the City of Jacksonville. An alternative writ of mandamus, after amendment, was directed to the defendant City and the legal sufficiency thereof tested by motion to quash which was overruled and an answer or return was made to the alternative writ to the effect that the petitioner, Marion Foster, was not the wife of Kirby Foster at the time of his said death and for that reason she was ineligible to participate in the Police Pension and Relief Fund supra. The lower court heard the evidence on the issues, and, after argument of counsel entered a final judgment for the defendant below. The parties will be referred to in this opinion as they appeared in the lower court, as plaintiff and defendant.

The record discloses that a volume of testimony was taken on the question of whether or not the petitioner was the wife of Kirby Foster, she having admitted upon the stand that no ceremonial marriage was entered into between her and the deceased, but contending that the essentials of a common law marriage existed for a number of years prior to the death of Kirby Foster.

Marriage is a contract founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement but upon statutory and common law. It is an institution of society, regulated and controlled by public authority. The two essentials of a valid marriage at common law are capacity and mutual consent, and it is well settled that under the common law the marriage relation may be formed by words of present assent, per verba de praesenti, and without the interposition of any person lawfully authorized to solemnize marriages, or to join persons in marriage. The parties may express the agreement by parol, they may signify it by whatever ceremony their whim or their taste or their religious belief may select; it is the agreement itself, and not the form in which it is couched, which constitutes the contract. The ceremony performed is evidence of a present intention and agreement of the parties. See Marsicano v. Marsicano, 79 Fla. 278, 84 So. 156; Chaves v. Chaves, 79 Fla. 602, 84 So. 672; Le Blanc v. Yawn, 99 Fla. 328, 126 So. 789.

Counsel for plaintiff demanded in the lower court a jury trial upon the issues, and the same being denied, contends in this Court that reversible error was committed. He cites in support of his contention the case of Catlett v. Chestnut, Executor, 100 Fla. 1146, 131 So. 120. The question for consideration in the case, supra, was: Has a wife upon dissenting from the provisions of her husband's will and petition for the allotment of dower in his estate the right to a trial by jury on the fact of the existence of the marriage relation when in the proceeding the executor of the will denies the existence of the marriage relation between the petitioner and the testate? It will be observed that the case was brought under the statute for the admeasurement of dower and dissent of the widow from the provisions of her alleged husband's will. This Court properly held in the case that the issues should be decided by a jury. It was not an action in mandamus. This Court has consistently held since 1884, in the case of State ex rel. County Com'rs of Columbia County v. County Com'rs of Suwannee County, 21 Fla. 1, that, in the absence of a statute requiring it, the right of trial by a jury did not exist in mandamus cases. See State ex rel. Davis v. City of Avon Park, 117 Fla. 556, 151 So. 701; 18 R.C.L. par. 313, p. 355.

The next question for consideration is whether or not there are sufficient facts in the record...