Zeigler v. Zeigler

• Decision Date: 09 December 1935
• Docket Number: 31972
• Citation: 174 Miss. 302,164 So. 768
• Court: Mississippi Supreme Court
• Parties: ZEIGLER v. ZEIGLER

164 So. 768

174 Miss. 302

ZEIGLER v. ZEIGLER

No. 31972

Supreme Court of Mississippi

December 9, 1935

Division B

1 MARRIAGE.

Marriage by husband who was not threatened with bodily harm if he did not marry wife, but who had married her to escape penalty for statutory rape, of which he was not guilty because wife was above age of consent held not invalid because of coercion (Code 1930, section 1123).

2 MARRIAGE.

Marriage of parties who had right to marry without consent of any one held not invalidated because of noncompliance with statute in that father of the wife, and a kinsman of the husband, had obtained the license for the marriage, in view of manifest purpose of statute to prevent runaway marriages by juveniles below the age of consent (Code 1930, sections 2363, 2367).

3 STATUTES.

In construing statutes, chief desire of courts is to reach real intention of Legislature, and to adopt that interpretation which will meet real meaning, though it may be beyond or within letter of statute.

4. STATUTES.

Unthought of results must be avoided if possible in construction of a statute, especially if injustice follows, and unwise purpose will not be imputed to Legislature when a reasonable construction is possible.

HON. M. B. MONTGOMERY, Chancellor.

APPEAL from the chancery court of Holmes county HON. M. B. MONTGOMERY, Chancellor.

Suit by Mrs. Sadie Marshall Zeigler, minor, by H. O. Marshall, next friend, against William L. Zeigler. From an adverse decree, the defendant appeals. Affirmed.

Affirmed.

P. P. Lindholm, of Lexington, for appellant.

Marriage being the foundation of a husband's obligation to support his wife, it must appear that appellee is the lawful wife before support and maintenance can be awarded her.

Sims v. Sims, 122 Miss. 745, 85 So. 73; Reed v. Reed, 85 Miss. 126, 37 So. 642.

It is well settled in Mississippi that where the answer under oath denies there ever was a lawful marriage, and that averment clearly, from the showing made, appears to be true, no alimony or support fund pendente lite should be allowed.

Sims v. Sims, 122 Miss. 745, 85 So. 73; Reed v. Reed, 85 Miss. 126, 37 So. 642; McFarland v. McFarland, 64 Miss. 449, 1 So. 548.

All laws in chapter 49, Code of Mississippi, 1930, being the chapter on marriage, which are in conflict with chapter 237 of the Laws of Mississippi Legislative Session for the year 1930, are repealed by said legislative act.

Section 6, chapter 237, Laws of 1930, page 465; House Concurrent Resolution 65, page 161; Mississippi Code 1930, vol. 1; Acts 1930, page 727; Hunt v. Hunt, 172 Miss. 732, 161 So. 119.

Where neither party to an alleged marriage contract was present when application was made and the application blanks filled out in the circuit clerk's office, the male party then being confined in jail, and the female party in an automobile on the streets, and neither giving personal participation in the application for said marriage license, and, where the male applicant does not swear to the application, and where the application does not remain on file for five days in the circuit clerk's office before license issued and registered letter sent parents, and no affidavit of parent, guardian or next of kin of both parties, showing the age, etc., is made, and where the circuit judge of the district did not waive the five-day requirement, and where no parents or guardians appeared in person and waived the provisions of law by making oath as to the respective ages, being accompanied by the sworn affidavit of the male applicant to the application, and where the circuit clerk not only did not know the ages of the two interested parties, but did not even know the parties themselves until after the pretended marriage, and there was no further compliance with the law by the male applicant swearing to the application, then the issuance of a marriage license is unlawful and the marriage, under a license thus procured, is not valid, even though duly solemnized by ceremony, if not followed by co-habitation.

Chapter 237, Laws of 1930; Hunt v. Hunt, 172 Miss. 732, 161 So. 119.

Marriage procured by duress and not ratified will be annulled.

Marsh v. Marsh, 88 Miss. 400, 40 So. 326; Main v. Main, 113 Miss. 165.

Johnson & White, of Lexington, for appellee.

No element of duress is involved in this case.

From the appellant's own words, he did not marry appellee because of threats, or force, or compulsion, but for the sole reason of getting out of jail. Yet, for appellant to defend on the ground of duress, the same must be shown by clear, satisfactory, and convincing evidence.

Main v. Main, 113 Miss. 165, 74 So. 138; Rogers v. Rogers, 151 Miss. 644, 118 So. 619.

A ceremonial marriage consummated upon a license irregularly issued is not void although not followed by cohabitation.

Hargroves v. Thompson, 31 Miss. 215; Dickerson v. Brown, 49 Miss. 357; Ellis v. Ellis, 152 Miss. 836, 119 So. 304; Doss v. State, 156 Miss. 522, 126 So. 197; Section 15, The Law of Divorce and Separation in Mississippi, by Judge AMIS; 38 C. P., pages 1306 and 1307.

When the Legislature came to enact chapter 237 of the Session Laws of 1930, it had before it the foregoing long line of established precedents holding that marriages not solemnized strictly in accordance with the statutory regulations on the subject should not be declared void unless expressly declared so by the statute, and such precedents had been re-echoed as late as February 17, 1930, by the case of Doss v. State, 156 Miss. 522. Accordingly, the Legislature was presumed to have known the rule of construction placed upon this subject by the Supreme Court. White v. Williams, 132 So. 573, 159 Miss. 732, 76 A.L.R. 757. Nevertheless, they went right ahead and enacted said chapter 237 of the Laws of 1930.

In order to make doubly certain that the safeguards of the marriage law in force at the time said chapter 237 was passed, be not let down, section 6 of said chapter 237, the repealing clause, expressly sets out "but all laws or parts of laws not in direct conflict with the provisions of this act shall be and remain in full force and effect."

Chapter 237, Laws of 1930; Section 2367, Code of 1930.

OPINION

Anderson, J.

Appellee, Mrs. Sadie Marshall Zeigler, minor, by her father as next friend, filed her bill in the chancery court of Holmes county against appellant, her husband, living apart from him, seeking a decree for separate maintenance and support for herself and minor child. The cause was heard on bill, answers, cross-bill, and proofs, resulting in a decree in appellee's favor in the sum of twelve dollars a month and attorney's fee. From that decree, appellant prosecutes this appeal.

Appellant defended upon the ground that he was not the husband of appellee, and this was based on two contentions, first, that although they were ceremonially married, the marriage was brought about by duress and therefore void; second, that in the issuance of the marriage license, chapter 237, Laws 1930, section 2363, Code 1930, was not complied with, and for that reason the marriage was void.

The marriage ceremony between appellant and appellee took place on December 31, 1934. On January 25, 1935, a child was born to appellee, which she testified had been begotten by appellant, and the court so found in its decree. At the time of the marriage appellant was over twenty-one years of age and appellee was over eighteen, therefore, under section 2363, Code 1930, they were competent to enter into the marriage relation without consent of their parents or any one else.

On December 30th, appellant was about to leave the state. Appellee's father, in order to prevent him from so doing, preferred the charge against him before a justice of the peace of Holmes county of violating section 1123. Code 1930, which makes it a felony for a male person to have carnal knowledge of an unmarried female of previous chaste character younger than himself and over twelve and under eighteen years of age. Appellant was arrested on that charge and lodged in jail at Lexington pending his committing trial before a justice of the peace. Appellee's father, in his testimony, stated that in making the affidavit he overlooked the fact that appellee was over eighteen years of age. While in jail, appellant consulted a brother-in-law of his and other persons as to the course he should pursue, and friends of appellee's father approached him; they all advised him that the criminal prosecution would be "pushed to the fullest extent," and that he had better marry appellee in order to avoid it. Appellant finally agreed to the marriage and turned over to his brother-in-law Hammett five dollars, who, with appellee's father, went to the circuit clerk's office and obtained a marriage license. Hammett made application for the license and paid for the same claiming to act as appellant's agent. Appellee's father signed the application for the license for his daughter. Appellant was in jail, and appellee was not present. Thereupon appellant was released from jail, went to the home of Mr. Reid, a justice of the peace of the county, and was married by him to appellee, the usual marriage ceremony being performed. The justice of the peace properly signed the certificate of marriage and filed the same with the circuit clerk of the county, who filed and recorded it. Appellant immediately deserted appellee and refused to live with her. There was no cohabitation or opportunity of cohabitation between them as man and wife after the marriage.

Did this amount to such duress as to avoid the marriage? We think not. Main v. Main, 113 Miss. 165, 74 So. 138; Rogers v. Rogers, 151 Miss. 644, 118 So. 619. In the Main case the court restated the well-established principle that...