Summerville v. Summerville

• Decision Date: 28 March 1903
• Parties: SUMMERVILLE v. SUMMERVILLE.
• Court: Washington Supreme Court

72 P. 84

31 Wash. 411

SUMMERVILLE v. SUMMERVILLE.

Supreme Court of Washington

March 28, 1903

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Cora E. Summerville against William J. Summerville. From a judgment for plaintiff, defendant appeals. Affirmed.

P. V Davis and William A. Gilmore, for appellant.

Byers &amp Byers, for respondent.

HADLEY, J.

Respondent brought this action against appellant for divorce and alimony. The complaint alleges that the two were married at Lake Linderman, in British Columbia, on June 18, 1898; that a child, two years of age at the time the complaint was drawn was born as the issue of the marriage; that on or about August, 1899, appellant sent respondent out from Dawson City where they were then residing, together with the child, then three months old, and stated to respondent that he would send her money, and that he would also come out later in the autumn; that appellant did not come out, and has never sent respondent any funds of any kind since said date; that he has wholly deserted and abandoned her, and has contributed nothing for her support or that of her child, since August 1899. The answer denies the marriage, and denies that respondent was a resident of King county at the time the action was commenced, or that she had resided in this state for one year immediately preceding the commencement of the action. The paternity of the child is admitted, and it is affirmatively alleged that by mutual agreement the two cohabited together during the summer of 1898 at Lake Linderman, aforesaid, and that they thereafter went to Dawson City, and there lived together until about the month of August, 1899, when they mutually consented to separate forever; that appellant then gave respondent one-half of all the property and money he then owned; and that it was further agreed that neither should have any claim against the other for any property thereafter accumulated by either, including any claim for alimony against appellant. These allegations are denied by the reply, and upon these issues the cause was tried by the court without a jury, resulting in a decree of divorce in favor of respondent, awarding her the custody of the child and $20 per month alimony, to be paid monthly by appellant. From said decree this appeal was taken.

It is insisted, first, that respondent failed to establish that she had been a resident for the required time before bringing the action. The suit was commenced in May, 1901. The evidence showed that respondent came out from Dawson in the summer of 1899. Much of the time following until this suit was begun she spent in Seattle. During a portion of the time she was in Victoria, where she says she went for employment. She testified, however, that her child meanwhile remained in Seattle, and that it was her constant intention to make Seattle her home. We think the evidence was sufficient to establish residence for a sufficient length of time to give the court jurisdiction.

Appellant's main contention is that respondent failed to establish the marriage. She was very young at the time of the alleged marriage, being not quite 16 years of age. She testified that in the spring of 1898 she and her mother were together at Lake Linderman, where they met appellant. Appellant's own testimony shows that he was then about 35 years of age. Respondent says that while at Lake Linderman they agreed to be married, and that afterwards appellant took her before some one whom she believed to be a clergyman, and who performed the marriage ceremony between them. She says she really was excited at the time, and cannot well remember all that occurred. She saw no marriage license or marriage certificate. She testifies that from that time she and appellant lived together as husband and wife, her mother also living with them. Appellant denies her statements about the marriage ceremony, but admits that they began living and cohabiting together at Lake Linderman, and that the mother lived with them. They afterwards all went to Dawson together, where the two continued to sustain the relation already established, and meantime the child was born. Another witness, who was at Dawson at the time testified that appellant introduced respondent there as his wife, and that she was held out by him as being such. Still another witness, who was at appellant's house in Dawson, says that while there appellant asked respondent to bring the baby down from upstairs, and he then told the witness that the child was his, as did also the mother of respondent. The witness does not say that appellant told him in so many words that the mother of the child was his wife, but that in the manner above he held her out as being such. There was no record evidence of the marriage introduced. Respondent's testimony is supported only by the circumstances detailed above, and by further circumstances occurring at the trial, having at least a tendency to impeach the testimony of appellant. A letter addressed to respondent after she left Dawson was shown him, in which she was addressed as the wife of the writer. The writer also designates himself at the close of the letter as 'Hubby,' uses many endearing terms towards respondent, and expresses much solicitude about the health and welfare of the child. Appellant denied that he wrote the letter. He was asked, while on the witness stand, to write certain words from dictation, which he did. The words were extracts from the letter. The newly written words...