Tyll v. Keller

• Decision Date: 05 March 1923
• Citation: 120 A. 6
• Parties: TYLL v. KELLER.
• Court: New Jersey Supreme Court

120 A. 6

TYLL

v. KELLER.

Court of Errors and Appeals of New Jersey.

March 5, 1923.

Appeal from Court of Chancery.

Suit by John C. Tyll against Anna Keller. From a decree dismissing his petition, petitioner appeals. Decree affirmed.

Samuel Koestler and George Schmidt, Jr., both of Elizabeth, for appellant.

Theodore D. Gottlieb, of Newark, for respondent.

GUMMERE, C. J. The present appellant, John C. Tyll, filed his petition in the Court of Chancery, seeking to have a ceremonial marriage, entered into between himself and the respondent on June 23, 1919, declared null and void, upon the ground that at the time thereof there was a subsisting marriage between the respondent and one Louis Bozear. Upon final hearing the petition was dismissed, and Tyll appeals.

The undisputed facts necessary to be considered in determining whether the present appeal is well taken are as follows: The man Bozear, referred to in the appellant's petition, entered into a ceremonial marriage in the city of Newark on October 16, 1910, with one Franciszka Naszka, So far as is known, there was no issue born of this marriage, and shortly after it took place the parties separated, and the Naszka woman returned to Austria, which was the place of her birth and original home, and has not been seen or heard of since the year 1911, so far as the testimony shows.

On September 1, 1916, approximately five years after the Naszka woman had been last heard of, the man Bozear and the present respondent were married in the town of Chatham, in this state, by Rev. R. A. Mahoney, and shortly afterward Bozear left the respondent, and they have not since lived together. A child was born of this marriage.

On June 23, 1919, the appellant and the respondent were married, in the city of Newark, by Rev. F. Rolinski, and they lived together as husband and wife until some time in the month of May, 1921. A child was born of this marriage.

The man Bozear was living at the time of the marriage of the parties to this suit, and the present respondent has never been divorced from him. We think it must be presumed that the ceremonial marriage between the man Bozear and the woman Naszka, in October, 1910, was a valid one. This being so, the question arises, What was the status of the marriage between Bozear and the present respondent? As has been stated, the Naszka woman returned to Austria in 1911, and has not since been seen or heard of. The law ordinarily presumes a continuation of life until seven years have elapsed after a person has been last heard of. But this presumption is not a conclusive one; and, where that presumption would, as in the present case, render the party against whom it is raised guilty of a bigamous marriage, and would stamp his child as a bastard, the presumption of innocence...