United States v. Green

• Decision Date: 01 December 1899
• Citation: 98 F. 63
• Parties: UNITED STATES v. GREEN.
• Court: U.S. District Court — Southern District of Iowa

98 F. 63

UNITED STATES v. GREEN.

United States Circuit Court, S.D. Iowa.

December 1, 1899

Steele & Robbins, for defendant.

SHIRAS District Judge.

In this action the United States seeks to recover from the defendant the sum of $1,146.25, which aggregate amount was paid to the defendant from time to time upon a pension which was allowed to the defendant as the widow of Levi B. Davis, formerly sergeant major of the 50th Indiana volunteer infantry, and also upon a pension allowed to the minor children of said Levi B. Davis. From the agreed statement of facts upon which the case is submitted to the court, it appears that on the 11th day of January, 1878, a marriage ceremony, in due form was had between the defendant and Levi B. Davis, in Jackson county, Ind., under a license duly issued for that purpose the marriage ceremony being conducted by R. C. McKinnee, who possessed the lawful authority to perform the ceremony. It is admitted that this marriage was entered into in entire good faith upon the part of both parties thereto, and said defendant being at the time a single woman. It is also admitted that from the date of said marriage the parties thereto lived together as husband and wife, being so known and received by the community in which they lived; that of this marriage there were born six children, four of whom are now living. It is further admitted that in no form was the validity of this marriage questioned by any one during the lifetime of Levi B. Davis; that Davis died April 30, 1889 having always recognized the defendant as his wife, and the children born to them as his lawful and legitimate children It is admitted that after the death of Levi B. Davis, in perfect good faith, the defendant made application for a pension for herself and her minor children, as being the widow and children of Levi B. Davis, and the department, in good faith, allowed the pension, and has paid the sum of $1,146.25 to the defendant in her own right as widow, and also to her as guardian of her minor children. This suit is now brought on behalf of the government to recover back the sum of money thus paid; it being claimed that, owing to a prior marriage between Davis and one Eliza Jane Callahan, the relation of husband and wife was not lawfully created between Davis and the defendant.

From the agreed statement of facts, it appears that on July 6 1848, a marriage was had between Davis and Eliza Jane Callahan; that on the 19th day of April, 1877, a decree of divorce was granted to Levi B. Davis from Eliza Jane Callahan by the probate court of Malade county, Utah, which Davis, the defendant, and the department in good faith believed to be a valid decree, and acted in the premises in that belief, but it is now claimed on behalf of the government that, by a change of the law, the jurisdiciton of the probate court over matters of divorce had been abrogated at the time of the rendition of the divorce decree. Before the court would be justified in holding that the court of Utah territory erred in exercising jurisdiction in the divorce proceedings,-- a ruling which, if made, might affect the interests and relations of many others besides the parties to the suit,-- the court should be put into possession of all the material matters, both of law and fact, necessary to be considered in reaching a conclusion upon the question. The statement of facts upon which the case is submitted does not present this question with fullness of detail necessary for its proper consideration, and, for the reasons hereinafter stated, the court will not undertake to determine the question. If, upon a thorough examination of the matter, it should appear that the jurisdiction of the court of Utah territory, granting the divorce, had not been terminated by the subsequent legislation granting jurisdiction in divorce matters to the district courts, then the validity of the divorce granted to Levi B. Davis would be beyond...