Suddeth v. Hawkins

• Citation: 202 S.W.2d 572
• Decision Date: 20 May 1947
• Docket Number: No. 27209.,27209.
• Parties: SUDDETH et al. v. HAWKINS.
• Court: Court of Appeal of Missouri (US)

202 S.W.2d 572

SUDDETH et al. v. HAWKINS.

No. 27209.

St. Louis Court of Appeals. Missouri.

May 20, 1947.

Rehearing Denied June 20, 1947.

Appeal from Circuit Court, Pike County; Theodore Bruere, Judge.

"Not to be reported in State Reports."

Suit in ejectment by Myrtle Kolb Suddeth and another against George Hawkins. Judgment for defendant, and plaintiffs appeal.

Affirmed.

J. H. Haley, Jr., of St. Louis, and J. H. Haley, of Bowling Green, for appellants.

May & May, of Louisiana, for respondent.

ANDERSON, Judge.

This is a suit in ejectment. The property involved consists of a lot in the city of Louisiana, which had been conveyed on June 21, 1926, to John Kolb and Alice Kolb, as husband and wife. John Kolb died on April 14, 1940. Alice Kolb died on September 7, 1940, leaving several children surviving. These children had been born to her while she was the wife of a man named Webber or Weber. By warranty deed, dated February 15, 1945, the children of Alice Kolb conveyed the property here involved to respondent, George Hawkins. On August 1, 1945, a daughter of John Kolb, Myrtle Kolb Suddeth, filed this suit. Her mother, at the time of her birth, had been married to John Kolb, but later was divorced from him. After this divorce, John Kolb married Julia Phillips. After the present suit was filed, plaintiff Myrtle Kolb Suddeth amended her petition by joining Julia Phillips Kolb as a party plaintiff, on the theory that as the surviving widow of John Kolb, Julia Phillips Kolb had an interest in the property. George Hawkins, respondent, by his answer, pleads title in himself, and the right to possession of this property by virtue of the deed from the children of Alice Kolb.

Appellants sought to sustain their claim to the right of possession on the theory that John Kolb and Alice Kolb had never been married.

A jury was waived, and the cause was tried before the Court. The Court found the issues in favor of defendant, and entered its judgment accordingly. From this judgment, plaintiffs have appealed.

The evidence shows that John Kolb formerly resided on a farm in Alabama. At that time, he was married to Julia Phillips Kolb, one of the plaintiffs herein. On this farm also lived Alice Weber, who, at that time, was married to Mr. Weber, a sharecropper on John Kolb's farm. John Kolb and Alice Weber became enamored of each other. They left their respective spouses, and later came to Louisiana, Missouri, where they lived together until John's death in 1940. When Alice Weber left her husband, she went to her mother's home in Columbus, Mississippi, taking her seven or eight year old daughter Lillian with her. It is not shown how long Alice and her daughter remained in Alabama, but John joined them, and in 1922 or 1923, they all three came to Louisiana, Missouri.

Lillian testified that John Kolb and her mother always said that they were married. She further testified that they came to Louisiana, and lived at 700 North 9th Street, and she lived with them until she graduated from the Louisiana High School. She called John Kolb father, and after she married and had children, she referred to him as Grandpapa Kolb. She further testified that she had heard her father refer to her mother as Mrs. Kolb, and as his wife, and that they were known in church as husband and wife. They co-habited and lived together as husband and wife. On cross-examination, the witness stated that she couldn't say that her mother and Kolb were married in Columbus, Mississippi, but she knew they were married because her mother said to her: "You have a new father." She also testified that her mother told her that she and her father (Weber) were divorced.

Davis Benning testified that he had known John Kolb and Alice Kolb for many years. He stated that John Kolb did furniture repairing and upholstering, and had done considerable work for him; that Kolb would come to the office and talk to him about the work, and would say to pay his wife if he was not at home. Mr. Benning further testified that he had been at the Kolb home many times, and had never heard John and Alice referred to other than as husband and wife.

The defendant George Hawkins testified that he was a neighbor of John Kolb and his wife Alice, and had lived across the street from them for five years. He stated he went to the Kolb place frequently, and saw them living there in the home. He also stated that he had heard John Kolb refer to Alice as his wife and as Mrs. Kolb, and that he was present when other people addressed Alice as Mrs. Kolb.

Ivern Britt Watson testified that he had known John Kolb and Alice for twenty-two years; that he had heard them refer to each other as husband and wife; and that they held themselves out to the community as husband and wife.

Milton Holms testified that he had known John Kolb since 1922 or 1923, and that John always referred to Alice as his wife.

Ethel Thornton, Secretary of the Sixth Street Methodist Church, testified that it was her duty, as secretary, to record the names of members as they came into the church. She stated that when Alice came into the church in 1922 or 1923, her name was recorded as Alice Kolb. She further testified that she knew that John Kolb and Alice lived together as husband and wife, and that she had many times heard each refer to the other as husband and wife.

Molly Tucker testified that she knew Alice, and had always heard her addressed as Mrs. Kolb. She stated that John Kolb was a member of her church, and superintendent of the Sunday School; that he was very religious, and devoted in his worship. She further stated that it was generally reputed in the church and neighborhood that they were Mr. and Mrs. Kolb. She had heard them addressed that way by different people.

Plaintiff Myrtle Suddeth testified that her stepmother was at home when her father left with Alice, and that they did not know where they were for a year, but finally found out that they were in Louisiana. She stated she visited her father in Louisiana, but that he did not say anything about being married to Alice. She further testified that she knew her father was not divorced from her stepmother, because her stepmother lived with her in Chicago Heights, Illinois, and her stepmother received no letters from witness' father asking for a divorce, and her stepmother said that they were not divorced. She further testified that when she visited her father in Louisiana, her father and Alice occupied the same bedroom, but there were two beds in it. She further stated that she never heard people refer to Alice as Mrs. Kolb, and that none of the neighbors called her Mrs. Kolb.

Molly McAllister testified that she lived just across the fence from John Kolb and Alice, and was in and out of their house frequently; that one Sunday during John Kolb's last illness, Alice called in Brother George Smith to marry her to John, but that Brother Smith said he couldn't do it because they were not divorced. Shortly after that Brother William came in, and he refused to marry them. She never heard Alice referred to as Mrs. Kolb. John Kolb told her he had been married twice, and that Alice was the third, and was the first real mate that he had found. On cross-examination, this witness stated that she first met John and Alice in 1934, and at that time they were addressed as Mr. and Mrs. Kolb. She further testified that she supposed they lived together as husband and wife; that she had never seen anything out of the way; that Alice kept house for him; that they always took the name of Mr. and Mrs. Kolb; that she had never heard him call Alice his wife, or Alice call him her husband; that there was nothing to make her think they were husband and wife.

Clyde Powers, the city marshal, testified that he was acquainted with the foregoing witness, Molly McAllister, and that her general reputation since he had been connected with the police department was bad.

John Coleman testified that he knew John Kolb and Alice Kolb when they first came to Louisiana. He stated that when Alice came, she came as Alice Weber, and joined the Sixth Street Church. This witness further testified:

"I knew the Kolbs for years, and knew how faithful she was at church. He left our church, and went to the Penticostal Church. I don't know whether they lived together as husband and wife. They were not called Mr. and Mrs. John Kolb. When she went in our church she had the name of Alice Weber. They were in our church three or four years, or longer. I know that after that they went by the name of Mr. and Mrs. Kolb. I don't know whether they lived together or not. People referred to them as Mr. and Mrs. Kolb. I don't know whether they were husband and wife or not. When she first went to our church, she was known as Alice Weber. After that she was known as Alice Kolb, but whether they were married or not I don't know. I don't know that they were living together at the time of the death of both of them. They were living in the same house. I can't say they were looked upon and considered by the community as Mr. and Mrs. John Kolb. I know they were looked up to, but I didn't hear people call them that.

"I never heard John Kolb or Alice Weber say to me or anybody that they were married. I never knew of them holding themselves out with the people they associated with as husband and wife. I knew them a long time. If they were married, I don't know anything about it. I never heard Alice Kolb or John Kolb tell anyone or hold themselves out as husband and wife.

"I don't know that they held themselves out as such. I don't know that they lived together. I didn't live close to them. I am not sure they lived in the same house. I heard people address them as Mr. and Mrs. I never heard John speak of her as Mrs. Kolb after he left the church. I never heard her call herself Mrs. Kolb. I don't know that they were looked upon and considered by the people as Mr. and Mrs. Kolb."

George Martin, plaintiff's witness, testified that h...