Univ. of Mich. v. McGuckin

• Court: Nebraska Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Univ. of Mich. v. McGuckin, 62 Neb. 489, 87 N.W. 180 (Neb. 1901)
• Decision Date: 10 July 1901
• Parties: UNIVERSITY OF MICHIGAN v. MCGUCKIN ET AL.

62 Neb. 489

87 N.W. 180

UNIVERSITY OF MICHIGAN

v.MCGUCKIN ET AL.

Supreme Court of Nebraska.

July 10, 1901.

Syllabus by the Court.

1. In this state marriage is a civil contract, and whenever the minds of parties capable of entering into such a contract with each other meet in a common consent thereto at the same time there is a valid marriage.

2. In the absence of a bill of exceptions, the findings of the trial court on a question of fact will not be reviewed.

3. Answer examined, and held to contain a sufficient averment of marriage between the defendants when assailed for the first time on appeal.

Error to district court, Douglas county; Keysor, Judge.

Action by Charles E. Bates against Anna McGuckin, administratrix of Daniel McGuckin, and others. Judgment for defendants, and plaintiff brings error. The University of Michigan was thereafter substituted for plaintiff. Affirmed.Wright & Thomas and Wright & Stout, for plaintiff in error.

I. R. Andrews and J. J. Green, for defendants in error.

ALBERT, C.

This action was brought by Elizabeth H. Bates against Daniel L. McGuckin and Anna McGuckin to foreclose a mortgage executed by the first-named defendantto the plaintiff. Anna McGuckin resisted the foreclosure, on the ground that at the time of the execution of the mortgage, and at all times subsequent thereto, she was the wife of her co-defendant, and that the mortgaged premises was their family homestead; that the mortgage, not having been signed and acknowledged by her, was void. The reply was a general denial. A trial of the issues joined resulted in a finding and decree in favor of the defendant, to reverse which the case is brought to this court on appeal. For reasons not necessary to state in detail, the case is now prosecuted under its present title.

The first question presented is whether the findings of the trial court are sufficient to sustain the decree. The appellant challenges the sufficiency of the finding on two grounds, which will be considered in their order. It is first urged that the findings do not establish a marriage between Anna McGuckin and her co-defendant. The finding on this point is as follows: “(4) The court further finds that the said Anna McGuckin entered the home of Daniel L. McGuckin in the month of April, 1880, as housekeeper for Daniel L. McGuckin. That she was then the wife of James Lavell. That at the solicitation and expense of Daniel L. McGuckin she commenced an action for divorce against said James Lavelle in Burt county, Nebraska, and that a divorce was granted her on May 4, 1880, in the district court of Burt county, Nebraska. That at the time of the filing of her petition in Burt county, Nebraska, she was living in Burt county, Nebraska, and that her parents, with whom she had made her home since separating from said James Lavelle, were residing in said Burt county, Nebraska. (5) That in April, 1880, Daniel L. McGuckin was a married man, and that he obtained his divorce from his wife in August, 1880, and that said Anna McGuckin did not know of the fact that Daniel L. McGuckin was married until May 4, 1880. That at a time prior to the obtaining of her divorce, to wit, on May 4, 1880, said Daniel L. McGuckin and Anna McGuckin promised to marry as soon as she should get her divorce, and that they commenced cohabiting together at said time, and continued to so cohabit until April, 1893. That the said Daniel L. McGuckin again promised to marry the said Anna McGuckin after she got her divorce, and before he obtained his divorce, and promised that he would so marry her as soon as he could procure a divorce from his...