Summary
In Hill v. Lindsey, 223 Ala. 550, 137 So. 395, the appellee, claiming to be the widow of Jim Lindsey, whose estate was in the course of administration in the Probate Court, secured an order removing the same to the Circuit Court in Equity.
Summary of this case from Hanks v. HanksOpinion
6 Div. 862.
October 8, 1931. Rehearing Denied November 19, 1931.
Appeal from Circuit Court, Blount County; O. A. Steele, Judge.
P. A. Nash, of Oneonta, for appellant.
The test of finality of a judgment to support an appeal is not whether the cause remains in fieri awaiting other proceedings to entitle the parties to their acquired rights, but whether the judgment ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated or necessarily involved. McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917. Where the administration of an estate has been removed from the probate court to the circuit court in equity on the petition of a person not named in the statute, the equity court should, on motion of the administrator, remand the cause to the probate court. Code 1923, § 6478. In a chancery case, if either party is dissatisfied with the verdict of a jury, an application should be made for a new trial, not to the court in which the issue is tried, but to the court of chancery in which the cause is pending. The court is without authority to ignore the findings of the jury. Code 1923, §§ 6631m, 6632; Ex parte Colvert, 188 Ala. 650, 65 So. 964; Adams v. Munter, 74 Ala. 338; Alexander v. Caldwell, 55 Ala. 517; Alabama T. N. R. Co. v. Aliceville, L. Co., 199 Ala. 391, 74 So. 441. There is no presumption in favor of a common-law marriage. Fuquay v. State, 22 Ala. App. 243, 114 So. 892. The presumption of an actual marriage arising from cohabitation may be rebutted by proof of a subsequent permanent separation between the parties, without any apparent cause, and the marriage of one of them soon afterwards. Fuquay v. State, supra.
J. T. Johnson, of Oneonta, for appellee.
The mere expression of an opinion by the court that one of the parties to the cause in equity should recover is not sufficient as a decree adjudicating rights of the parties which will support an appeal. Vice v. Littlejohn, 109 Ala. 294, 19 So. 386; Hill v. Hill, 211 Ala. 293, 100 So. 340; Thompson v. Maddux, 105 Ala. 326, 16 So. 885; Randall v. Hardy, 107 Ala. 476, 19 So. 971; Devane v. Smith, 216 Ala. 177, 112 So. 837; Carter v. Hutchens, 221 Ala. 370, 129 So. 8. A trial by jury in equity cases is not a matter of right except where made so by Constitution or statute. The verdict of a jury in an equity case is only advisory to the chancellor, and he is not required to follow the finding of facts by the jury in any case except where jury trial is made a matter of right. 24 C. J. 11; 35 C. J. 159; Code 1923, § 6631; Marshall v. Croom, 60 Ala. 121; Karter v. East, 218 Ala. 536, 119 So. 662, Id., 220 Ala. 515, 125 So. 655; Mathews v. Forniss, 91 Ala. 157, 8 So. 661. The law presumes that the ceremonial marriage of Belle Lindsey and Jim Lindsey was a valid marriage. Walker v. Walker, 218 Ala. 16, 117 So. 472. Cohabitation of the parties and the act of the husband in having the impediment to the wife's remarriage removed show that the parties intended marriage concubinage. Prince v. Edwards, 175 Ala. 532, 57 So. 714; McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917; Herd v. Herd, 194 Ala. 613, 69 So. 885, L.R.A. 1916B, 1243; Adger v. Ackerman (C. C. A.) 115 F. 124; Klipfel's Estate v. Klipfel, 41 Colo. 40, 92 P. 26, 124 Am. St. Rep. 96. A voluntary nonsuit is res judicata of nothing. Clark v. Tunstall, 179 Ala. 558, 60 So. 847; Hall v. Ala. T. Co., 173 Ala. 398, 56 So. 235.
Appellee, claiming to be the widow of Jim Lindsey, deceased, whose estate was in the course of administration in the probate court, secured an order of removal thereof into a court of equity. The pleading in the equity court filed by the administrator challenged the claim that appellee was such widow, presented an issue of fact thereon, and prayed for a jury to hear the same, which was granted; the trial resulting in a verdict against appellee's claim. The chancellor, however, who also presided and instructed the jury upon the above-noted issue of fact, contrary to the jury's verdict, entertained the view that appellee was in fact the widow, and entered decrees so adjudging and declined to retransfer the administration to the probate court, ordered an appraisal of the estate and that appellee be awarded exemptions allowed by law.
These rulings were such as to meet the test of finality of a decree to support an appeal under McClurkin v. McClurkin, 206 Ala. 513, 90 So. 917, and Smith v. Goldsmith (Ala. Sup.) 134 So. 651, and the case is readily distinguishable from that of Carter v. Hutchens, 221 Ala. 370, 129 So. 8, cited by appellee. The motion to dismiss the appeal is denied.
Ante, p. 155.
Appellant insists the verdict of the jury was binding upon the chancellor, but this is only true in equity in those cases where a jury may be demanded as a matter of right. Karter v. East, 220 Ala. 511, 125 So. 655; Marshall v. Croom, 60 Ala. 121; section 6631, Code 1923.
In the instant case there is no statute granting a jury trial as matter of right, and such a trial rested in the sound discretion of the chancellor. The verdict was therefore not binding upon the court, but advisory merely. Marshall v. Croom, supra; 24 Cyc. 111.
Coming to a consideration of the evidence, we think it amply supports the chancellor's conclusion. It is without dispute there was a ceremonial marriage, a minister officiating under license duly issued, followed by cohabitation as man and wife for nearly a year. This marriage was presumptively valid, and the burden of proof to the contrary rested upon the administrator who questions it. Walker v. Walker, 218 Ala. 16, 117 So. 472; Fuquay v. State, 217 Ala. 4, 114 So. 898.
The husband had made a deed to his land to the wife, and we gather vaguely from the record that litigation with his children by a former marriage followed on that account, and that in the course of the litigation it developed the validity of their marriage was assailed upon the ground that Belle Lindsey, the wife, had not, at the time of the marriage, obtained leave of the court to again contract marriage; the divorce decree in favor of her former husband, one Williams, being silent in this regard. Smith v. Goldsmith, supra, and authorities therein cited. It appears, however, undisputedly, that upon such discovery, Jim Lindsey, the husband, employed counsel and secured a decree granting to Belle Lindsey the right to remarry. This decree bears date March 9, 1929, and on May 8, 1929, the wife reconveyed to the husband the land he had previously deeded to her.
The conflict in the proof relates to the question of cohabitation as man and wife following the decreetal order of March 9, 1929. Appellant insists that while they each lived on the place they remained separate, but we are persuaded the decided weight of the evidence, supported we think by reasonable deductions from undisputed facts, leads to the conclusion that the husband obtained the order for the very purpose of removing all doubt or question as to the validity of their ceremonial marriage, which both parties evidently considered entirely regular, and that they continued to live together as man and wife thereafter until the separation, details of which are here unimportant. It is the well-settled rule that if parties in good faith marry when in fact a legal impediment exists to their marriage, and they continue to cohabit as man and wife after the removal of the impediment of their lawful union, the law presumes a common-law marriage. Note to Klipfel v. Klipfel, 124 Am. St. Rep. 116. This principle was recognized by this court in Prince v. Edwards, 175 Ala. 532, 57 So. 714, and giving it application here to the well-established proof as above indicated, we find ourselves in accord with the chancellor as to the validity of the marriage.
The denial of appellant's application for rehearing before the chancellor is not here subject to review. Ford v. Ford, 218 Ala. 15, 117 So. 462.
Appellee's application for appointment as administratrix and her objections to the appointment of appellant as such were withdrawn, her action in this regard amounting in effect to a voluntary nonsuit, and did not therefore constitute the matter res adjudicata. Clark v. Tunstall, 179 Ala. 558, 60 So. 847.
No reversible error appearing in the decree rendered, it will be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.