Thomas v. Thomas

• Decision Date: 08 October 1884
• Citation: 20 N.W. 846,16 Neb. 553
• Parties: THOMAS v. THOMAS.
• Court: Nebraska Supreme Court

16 Neb. 553

20 N.W. 846

THOMAS

v.THOMAS.

Supreme Court of Nebraska.

Filed October 8, 1884.

Error from Douglas county.

C. A. Baldwin, for plaintiff.

Redick & Redick, for defendant.

REESE, J.

This action was instituted by the plaintiff in error, asking that a marriage contract entered into between him and the defendant in error be declared null and void, for the reason that at the time of the marriage the defendant in error had a husband living and from whom she was not divorced. The answer, among other things, denies the allegations of the petition, and alleges that at the time of the marriage the husband referred to was dead. The issues were tried to a jury, who found in favor of the defendant, and the action was then dismissed, and the plaintiff brings the case to this court on error.

We have examined the case with all the care we could, and have given it all the time at our command, and with one exception we find the proceedings regular. But, as the record is very voluminous, we must refrain from discussing all or even any portion of the questions involved, with the exception referred to. The defendant in error admitted having been twice married prior to her marriage to the plaintiff in error. The first of these marriages was to one Orsen Nickerson. There is little if any question relative to his death prior to her marriage to defendant in error, and no further attention need be given to that part of the case. The name of her second husband was Samuel Price. No proof of his death was made, but the defendant in error relies upon the presumption of his death arising from his being absent and not heard from for more than seven years prior to her marriage to plaintiff in error. The testimony shows that the plaintiff and defendant were married on the first day of September, 1875, in Omaha. The testimony of defendant in error shows that she was married to Price in 1866 or 1867, and resided with him until the following year in Wisconsin, when he left her. That year or the next she removed to near Iowa City, Iowa. Her daughter, Mrs. Behue, testified that she knew Price; that her mother lived with him as her husband at Iowa City, she thinks in 1869; that her mother removed from Iowa City to some other point,--she is unable to remember the name, being young at the time,--and from there to Osceola, Iowa, and from there to Omaha in April, 1873.

The first instruction given to the jury by the court, and which appears to have been excepted to by the plaintiff, is as follows: “You have been called to pass upon certain questions of fact involved in this cause, which have been reduced to writing, and are herewith submitted to you. In passing upon these questions of fact you are to consider all the evidence admitted on behalf of both parties. In addition to the instructions given as asked by the parties, ...