Succession of Marinoni

• Decision Date: 03 January 1933
• Docket Number: 32069
• Citation: 177 La. 592,148 So. 888
• Court: Louisiana Supreme Court
• Parties: Succession of MARINONI

148 So. 888

177 La. 592

Succession of MARINONI

No. 32069

Supreme Court of Louisiana

January 3, 1933

Second Rehearing Refused May 29, 1933 [Copyrighted Material Omitted] [Copyrighted Material Omitted]

Original Opinion of January 3, 1933, Reported at 177 La. 592.

OPINION On Rehearing.

O'NIELL, Chief Justice.

The plaintiff has appealed from a judgment dismissing her suit on an exception of no cause or right of action. She is suing for recognition as the legitimate daughter of the deceased, Ulisse Marinoni, Jr., and for a third of his estate, as the only forced heir. She avers that a common-law marriage was entered into between her mother and Marinoni, in Mississippi City, in the state of Mississippi, on the 25th of August, 1900, and that she was born of that marriage. The defendants are the widow of Marinoni and the executors and residuary legatee named in his will. The case is before us on rehearing. On the original hearing, a majority of the members of the court were of the opinion that, inasmuch as the plaintiff's allegation that the law of Mississippi, on the 25th of August, 1900, sanctioned common-law marriages, was an allegation of fact, the case had to be heard on its merits in order to give the plaintiff an opportunity to prove the allegation.

Having considered the matter further, the court has concluded that a suit founded upon what is alleged to be the law of another state is subject to dismissal on a demurrer, or an exception of no cause or right of action, if in fact the law of that state is not what the plaintiff says it is. It is true that the law of a state other than that in which the law is invoked must be proved, as a matter of fact, if the allegation as to what the law is is not demurred to. That is because the state courts do not take judicial cognizance of -- because they are not supposed to know -- the laws of other states. But, when a suit in a state court is founded upon what is alleged to be the law of another state, the defendant may require the plaintiff to cite specifically the statute or statutes, or judicial decision or decisions, on which the suit is founded; and, if the reference to the law relied upon discloses that the plaintiff has no cause or right of action, the court is not compelled to hear evidence on the facts alleged, before dismissing the suit. The case is then of the character of a suit founded upon a written instrument showing upon its face that the plaintiff has no cause or right of action. A demurrer in such a case does not require the court toassume that the law is as the plaintiff alleges it is. Such an allegation, however positive its terms may be, is nothing more than an expression of opinion or conclusion of law. It is the right and the duty of the courts to construe the law on which a litigant relies, even though it be the law of another state; and, when he cites the law specifically in his pleading, there is no reason why the judge should need the opinions of others as to the meaning of the law, except by way of argument. Finney v. Guy, 189 U.S. 335, 23 S.Ct. 558, 47 L.Ed. 839; Hanna v. Lichtenhein, 225 N.Y. 579, 122 N.E. 625, 627; Musser v. Musser, 281 Mo. 649, 221 S.W. 46, 49; 49 C. J. 441, 442, § 545; 21 R. C. L. 509, § 70; Sutherland on Statutes and Statutory Construction (2d Ed. by John Lewis) vol. 2, pp. 622, 623, § 320 (192).

The doctrine is stated in Finney v. Guy, in the syllabus, thus:

"A state court is not concluded as to the proper construction of the statutes of another state and the decision of its courts construing them, on the theory that defendant, by demurring to the complaint, which contained an allegation in the form of an averment of fact as to the meaning of such laws and decisions set forth therein, admitted that such was the correct conclusion to be drawn from them."

In Finney's Case the court used expressions which are very appropriate here, viz.:

"In this case the statutes, together with references to the decisions of the state courts, are given in the complaint, and the pleader, by making an averment in the form of a fact, assumes to give a meaning to them such as he thinks to be correct; but the duty still remains with the courts to themselves determine from those statutes, and decisions what is in truth the law of the foreign jurisdiction. The courts are not concluded by an averment of what is the law in a foreign jurisdiction, contained in a pleading which is demurred to, any more than they would be by the testimony of a witness to the same effect upon a trial; certainly not when the statute upon which the case rests is set forth and the decisions under it are also referred to as evidence of the law."

In Hanna v. Lichtenhein, the Court of Appeals of New York stated the proposition, thus:

"An allegation in a pleading of the law of a sister state is, as we have stated, an allegation of fact, which is admitted by the demurrer. If the pleading sets forth in detail the statutes and decisions relied upon by the pleader, the question becomes one of law, and should be determined as such by the court in deciding the demurrer. A demurrer, in other words, does not admit the interpretation placed by a pleader upon the statutes and decisions specifically referred to or incorporated in a pleading."

The Supreme Court of Missouri, in Musser v. Musser, announced the rule of pleading, in a suit founded upon the law of another state, thus:

"The general rule, leaving out of consideration for the moment any distinction between the manner in which the common or the statute law of a state is to be pleaded, is that where one relies upon the law of another state to sustain his cause of action he must not only state with distinctness what that law is, as in pleading any other substantive fact, but also the facts which constitute its violation, that the court may be enabled to judge of its effect. Mere conclusions as to what counsel may think the law means will not suffice."

The defendants in this case filed, at the beginning of the suit, an exception of vagueness, and asked that the plaintiff be ordered to state the dates on which her mother and Marinoni were said to have lived together as husband and wife in the state of Mississippi, and to state where they resided, and to cite specifically the statute or statutes of Mississippi on which she relied, and the decisions of the courts of Mississippi construing the statute or statutes relied upon. The plaintiff was ordered to so supplement her allegations; and, in response to the order, she averred that her mother and Marinoni had lived together as husband and wife at the Gulf View Hotel, in Gulfport, Miss., from the 23d to the 26th of August, 1900, and at the Willow Cottage Hotel, in Biloxi, Miss., from the 26th until about the 29th of August, 1900, and then moved to New Orleans, and resided in this city, at 822 St. Peter street, for a period of nine or ten months, commencing about the 30th of August, 1900, and moved from 822 St. Peter street to 1639 Erato street, where they resided for about three months, and then moved to 1429 Joseph street, where they resided for two or three months. The plaintiff alleged that she was relying upon the fact of her parents' having lived together in Mississippi from the 23d to the 29th of August, 1900, with the consent to be married, as constituting a valid marriage under the common law of Mississippi. She averred that the allegation in her original petition that Marinoni had obtained from the clerk of the chancery court of Harrison county, Miss., on the 25th of August, 1900, a license to marry her mother, was merely to show the consent of the parties to the common-law marriage in Mississippi, "but not to show a ceremonial marriage under any statute of the State of Mississippi." She averred that there was on the statute books of Mississippi, in August, 1900, section 2864 of the Code of 1892, providing:

"A marriage shall not be contracted or solemnized unless a license therefor shall first have been duly issued, and such license shall be essential to the validity of a marriage."

The plaintiff alleged that section 2864 of the Mississippi Code of 1892 did not nullify common-law marriages contracted in that state, or affect the validity of the common-law marriage between her parents, and, in support of the allegation, she cited Hargroves v. Thompson, 31 Miss. 211; Dickerson v. Brown, 49 Miss. 357, and Rundle v. Pegram, 49 Miss. 751.

She alleged that the Supreme Court of Mississippi had not interpreted section 2864 of the Code of 1892 up to the time when the Legislature, as she says, clarified the law, in re-enacting the section as section 3249 of the Code of 1906, by adding this provision, viz.:

"But no irregularity in the issuance of or omission in the license shall invalidate any marriage, nor shall this section be construed so as to invalidate any marriage that is good at common law."

She alleged that, by this amendment of the law, made in adopting section 3249 of the Code of 1906, the Legislature virtually declared that the license referred to in section 2864 of the Code of 1892, as being "essential to the validity of a marriage," had reference only to marriages that were solemnized, and not to common-law marriages.

She alleged that, inasmuch as the Supreme Court of Mississippi had never interpreted section 2864 of the Code of 1892 before the adoption of section 3249 of the Code of 1906, and had never construed section 2864 of the Code of 1892 as meaning that common-law marriages were thereby nullified or prohibited in Mississippi, the common-law marriage of her mother to Marinoni was a valid marriage under the law ofMississippi.

She alleged that common-law marriages in Mississippi had been recognized as valid marriages, by the Supreme Court...