Opinion
No. 33670.
April 17, 1939.
1. MARRIAGE.
Presumption existed that marriage was valid.
2. MARRIAGE.
The burden rested upon those who challenged validity of marriage between defendant and his deceased wife to prove that defendant had, at time he married deceased, a wife by a former marriage who was still living and from whom defendant had not been divorced.
3. MARRIAGE.
Complainants claiming right to inherit deceased's property on theory that marriage between deceased and defendant was void because defendant had living wife of a former marriage did not have burden of proving that former wife could not have obtained a divorce at a place other than county in which she resided, but only that it was reasonably certain that she did not do so.
4. MARRIAGE.
In proceeding to establish complainants' right to inherit deceased's property on theory that marriage between deceased and defendant was void because defendant had living wife of a former marriage, evidence justified holding that defendant had not been divorced from former wife.
5. EVIDENCE.
Any competent person, who shows a sufficient knowledge of judicial records, may testify that a particular fact does not appear therefrom.
6. EVIDENCE.
In proceeding involving issue whether defendant had been divorced, testimony of an attorney that he carefully and more than once examined the judicial records of Shelby county, Tennessee, where defendant's wife resided, and that no divorce appeared thereon was admissible as against contention that proof should have been made by custodian of the judicial records.
7. EVIDENCE.
In proceeding involving issue whether defendant had been divorced, testimony of manager of abstract company of Shelby county, Tennessee, where defendant's wife resided, that his company kept a complete daily record of all divorces granted in Shelby county and that record did not disclose that wife obtained divorce from defendant was incompetent, since manager did not testify from his examination of records, but from memorandum thereof made by another.
APPEAL from the chancery court of Monroe county; HON. JAMES A. FINLEY, Chancellor.
I.L. Sheffield, of Fulton, for appellants.
It is fundamental and I take it that it will not be denied that the law presumes the validity of a ceremonial marriage and in order to sustain this presumption it even presumes death or a divorce.
Pigford v. Ladner, 103 So. 218.
Where a marriage is contracted ceremoniously, every reasonable presumption will be indulged in favor of its validity.
Pigford v. Ladner, 112 So. 785; Aldridge v. Aldridge, 77 So. 150; Sullivan v. Grand Lodge, K.P., 62 So. 360; Colored Knights of Pythias v. Tucker, 46 So. 51; A. V.R.R. Co. v. Beardsley, 30 So. 660; 31 Miss. 555; Wilkie v. Collins, 48 Miss. 496, 511.
As to the testimony of James Boren, this evidence was admitted by the court below, in the form a deposition, the witness being an abstractor connected with the Bluff City Abstract Company of Memphis, Tennessee, a man having no authority and not the custodian of the records of any public office in Shelby County, Tennessee. It appears that this abstractor investigated the records in an effort to ascertain whether or not a divorce had been granted to Dorothy Hunt Bourland. Under elementary rules this was clearly inadmissible.
10 R.C.L. 903, sec. 54.
Under the best evidence rule it is meant that no evidence shall be received which is merely substitutionary in its nature, so long as the original evidence can be had. The rule excludes that evidence which itself indicates the existence of more original sources of information. The contests of books and records can be proved only by public books or records if in existence.
10 R.C.L., page 906, sec. 59, page 907, sec. 61 and page 908, sec. 62.
In all cases where secondary evidence is admissible it must be shown that a reasonable effort was made to obtain the original.
10 R.C.L. 914, sec. 72; Smith v. Bd. of Suprs., Tallahatchie County, 86 So. 707, 124 Miss. 36; Hunter v. Bennett, 115 So. 204, 149 Miss. 368; Goodall v. Stewart, 3 So. 257, 65 Miss. 157; Stublefield v. Roper, 101 So. 852, 136 Miss. 831.
Under familiar rules the proof of the existence or nonexistence of the judgment of the court of record in foreign jurisdiction can be done only in the manner prescribed by law.
R.G. McLin Co. v. Worden, 55 So. 358, 99 Miss. 547; Sec. 1572, Code of 1930.
If records were permitted to be established in the manner attempted in this case by complainants endless confusion would result because the number of parties who might investigate such records and testify in regard to the contents thereof would be without limit. Indeed this evidence is not admissible.
I submit to this court that the court below committed fatal error in holding that the proof offered by complainants met the presumption of law that a divorce was obtained by Dorothy Hunt Bourland. She was not accounted for in Memphis, Tennessee, during the period of time from 1929 to 1934 and certainly the requirements under recent legislation for obtaining a divorce are so lenient that a party may move from one jurisdiction to another and obtain divorce in a very short space of time. Who can say that this was not done. The law presumes that it was done and I submit therefore that we are entitled to a decree.
Paine Paine, of Aberdeen, for appellants.
Our associate counsel, Hon. I.L. Sheffield, has cited the leading cases in our state with reference to the presumptions attending a ceremonial marriage. In addition to those authorities we call the court's attention to some other authorities decided later than the ones cited by counsel as follows, to-wit:
Essick v. Essick, 175 Miss. 412, 167 So. 420; Harper v. Fears, 168 Miss. 505, 151 So. 745; Wilkie v. Collins, 48 Miss. 496.
Appellees failed to overcome this presumption of a divorce having been obtained by Mrs. Dorothy Hunt Ballard Knight Bourland. We insist that they failed to overcome this presumption for two different reasons. 1. Appellees failed to account for the time this woman was out of Memphis, Tennessee, and failed to show by the evidence in the case that she had resided continuously in Memphis, Tennessee, from the separation from appellant Bourland up to December 1929. 2. The appellee did not even prove by the best evidence rule that this woman did not obtain a divorce in Memphis, Tennessee, where appellees contend she lived all this period of time.
We respectfully submit that the best evidence of whether the records of Shelby County, Mississippi, showed a divorce or no divorce was the deposition or certificate of the official custodian of these records.
10 R.C.L. 1105, sec. 311.
As has been properly said, records are no more self proving than are private rights and they must be properly authenticated before they may be introduced in evidence. If available such proof should come from the custodian of the record.
Junior v. State, 76 Ark. 483, 2 L.R.A. (N.S.) 652; Sec. 1566, Code of 1930; 22 C.J. 1006, sections 1282 and 1283.
The rule of evidence commonly known as the best evidence rule is that the highest degree of proof of which the case from its nature is susceptible must if accessible be produced; or in other words, that no evidence shall be received which presupposes that the party who offers it can obtain better evidence.
22 C.J. 974, sec. 1220.
Leftwich Tubb, of Aberdeen, for appellees:
Appellants have cited several cases on the presumption of death that arises when a person remains beyond the sea or absents himself from this state or conceals himself in this state for seven years successively without being heard of. They include the cases of Howard v. Kelley, 111 Miss. 285; Harper v. Fears, 168 Miss. 505; Essick v. Essick, 175 Miss. 412; and Pigford v. Ladner, 138 Miss. 461, 142 Miss. 435, 147 Miss. 822. These cases, all except the Howard-Kelley case, are based on this presumption of death which arises when a person thus absents himself.
Sec. 1537, Code of 1930; A. V. Ry. Co. v. Beardsley, 79 Miss. 417.
In Watson v. Watson, 177 Miss. 767, 171 So. 701, this court held that the presumption ends when the facts appear.
No presumption of death can be indulged in the present case. It is true appellant's wife, Dorothy Hunt Bourland, in January, 1930, left Monroe County and went back to her home in Memphis. But she has not, within the meaning of this statute, absented herself from the state for the period of seven years. And, furthermore, she was only away for a period of not quite five years, from January 1930 to December 1934, at which time appellant married Lodell Pickle in Monroe County, Mississippi It is clearly manifest that appellant knew all the time the whereabouts of this woman, Dorothy Hunt Bourland.
Now, assuming that on proof of the ceremonial marriage of appellant to Lodell Pickle on December 24, 1934, that the presumption arises that there was no impediment to this marriage, in other words, that his former wife was either dead, or that the marriage to her had been dissolved by divorce. As we have just shown, the presumption of death cannot arise to dissolve this marriage because this woman is still alive and within the statutory period of seven years, even if she had absented herself from or concealed her self within the state.
We confess that the presumption which attends a ceremonial marriage, throwing around that marriage all the presumption of innocence, is a very strong and favored presumption of the law. But it is not a conclusive presumption. This presumption that the previous marriage had been dissolved by divorce in this particular case is overcome and ends when the proof appears that no divorce had been granted to these parties or either of them.
38 C.J. 1343, sec. 115; Clark v. Clark, 115 Miss. 726, 76 So. 638; Sullivan v. Grand Lodge K.P., 97 Miss. 218, 51 So. 360; Thomas v. Clay, 120 Miss. 190, 82 So. 1; Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 1.
The question as to whether or not a divorce had been granted dissolving the former marriage is a question of fact which may be proved as any other fact may be established by competent evidence. It is true that in cases of this nature, as is held in practically all of the cases sustaining these presumptions, if no evidence at all is introduced by the party attacking the marriage, then the presumption will prevail and the second marriage will be held lawful and valid; but in the case at bar appellees brought to the attention of the court and introduced all of the testimony available on that subject as to whether or not the former marriage between appellant and Dorothy Hunt Bourland had been dissolved by a decree of divorce.
The testimony of David Ballon was competent and admissible. Although public records are here searched to ascertain whether or not they contain any divorce proceedings as between these parties, yet the final result is to the effect that no such record exists. In other words, no bill has been filed. The public records do not disclose any such suit or proceeding, and, therefore, no decree of divorce appears on these records. We are here proving a negative. We are making proof that no divorce exists. We are not making secondary proof of the contents of a public record, as in case of these divorces granted this lady from her former husbands, and in the estate proceedings of Hugh B. Hunt, her first husband. If we should undertake to prove the contents of these records by the testimony of some person who had read them, then the objection made by appellant would be well taken. But we are not here making proof of the contents of a public record. We are simply proving the fact that there is no record of any divorce between these parties, and that fact is provable just as any other fact may be established. It may be shown by any competent witness who has knowledge on the subject.
22 C.J., pages 1005, 1006, sections 1281, 1282, 1283; Hammond-Gregg v. Bradley, 119 Miss. 72, 80 So. 489; Federal Land Bank v. LeFlore County, 170 Miss. 1, 153 So. 882; Sackett v. Rose, 55 Okla. 398, 154 P. 1177, L.R.A., 1916D 820; Gutta Percha Rubber Mfg. Co. v. Ogalalla, 40 Neb. 775, 42 Am. St. Rep. 696.
In view of the authorities which we have cited and in view of all the facts and circumstances of this case, the objection made by counsel for appellant that the records of Shelby County, Tennessee, are the best evidence as to whether or not a divorce had been obtained by these parties or either of them, or that we should have taken the deposition of the custodian of the records or procured his certificate to the effect that no divorce had been granted, is wholly without any merit.
In 1934 the appellant, in Monroe County, where he resides, married Mrs. Lodell Pickle and lived with her in the relation of husband and wife until December, 1935, when Mrs. Bourland died intestate, seized and possessed of land and personal property. Mrs. Bourland left no children or descendents of children, but was survived by several brothers and sisters and descendants of brothers or sisters. This is a proceeding begun by Mrs. Bourland's brothers and sisters, and the descendants of deceased's brothers or sisters, against the appellant to determine the right of succession to the property left by Mrs. Bourland. The complainants' claim to this property rests on an allegation that the marriage between Bourland and Mrs. Pickle was void for the reason that Bourland had formerly married Dorothy Hunt, who was still living, which marriage had not been dissolved by decree of divorce. The marriage between the appellant and Mrs. Pickle is presumed, prima facie, to be valid, and the burden rests upon those who here challenge its validity to prove that Bourland had, at the time he married Mrs. Pickle, a wife by a former marriage, who is still living and from whom he has not been divorced. In order to meet this burden they proved that a short time prior to October 27, 1929, the appellant was in Memphis, Tennessee, where he met Mrs. Dorothy Hunt, who there resided, and on October 27th was legally married to her in Crittenden County, Arkansas. They immediately returned to Memphis, and Dorothy Hunt Bourland is still living and resides in Memphis; that a few days after this marriage the appellant returned to his home in Monroe County, Mississippi, leaving his wife in Memphis. Why she did not accompany him does not appear. Shortly thereafter Dorothy came to the appellant's home in Monroe County, Mississippi, cohabited with him a few days, when he again left her and went into another county to obtain work. Shortly thereafter he again met Dorothy, who seems to have asked him for money for her support, which he did not give her, resulting in the institution by her of a suit against the appellant, whether for a divorce and alimony, or for alimony alone, does not appear. The appellant satisfied Dorothy's demands in some way, resulting in the suit, instituted by her, being dismissed. Dorothy returned to Memphis and has continued to reside there. The appellant has received no communication whatever from her, but shortly before he married Mrs. Lodell Pickle, he was advised that Dorothy had married another man. He admits that no divorce was granted in Mississippi dissolving his marriage.
Dorothy belongs to the underworld criminal element, and had been several times divorced before she married the appellant. She has resided in Memphis since marrying the appellant. The only evidence of any absence by her from Memphis being that of a Memphis police officer, who said that while he knew that she had continuously resided in Memphis since 1929, he did not see her at all times, "but if she has lived out of Memphis since 1929, she has only lived outside of Memphis for very short periods". The records of Shelby County, Tennessee, in which Memphis is situated, do not disclose that any divorce has been granted to Dorothy from Bourland.
On this evidence the court below held that the bonds of matrimony between the appellant and Dorothy Hunt Bourland had not been dissolved, that the appellant's marriage to Mrs. Lodell Pickle was void, and awarded the property to the complainants, the appellees here.
The appellant having admitted that no divorce had been granted in Mississippi dissolving his marriage with Dorothy, the question thus presented is the sufficiency vel non of the evidence to negative the fact that Dorothy may have obtained a divorce from the appellant at a place other than Shelby County, Tennessee. No burden rested on the complainants to prove that Dorothy could not have obtained a divorce at a place other than Shelby County, Tennessee, but only that it was reasonably certain that she did not do so.
In Sullivan v. Grand Lodge, K.P., of Mississippi, 97 Miss. 218, 52 So. 360, the validity of a second marriage was challenged on the ground that the wife had a living husband of a former marriage. The evidence disclosed that the former marriage was contracted in Washington County, Mississippi; that thereafter the parties thereto resided in Washington, Sharkey, and Warren Counties, and that no divorce was granted to either of them in any of these counties. The Court held that this was sufficient evidence to negative the existence of such a divorce. Colored Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51; and Thompson v. Clay, 120 Miss. 190, 82 So. 1, are to the same effect. It follows from these decisions that proof of Dorothy's residence in Shelby County and that no divorce from the appellant was there granted her was sufficient to justify the court below in holding that no such divorce existed in the absence of proof that she was away from Shelby County and in another jurisdiction for a sufficient length of time to have enabled her to have there obtained a divorce. Schmisseur et al. v. Beatrie et al., 147 Ill. 210, 35 N.E. 525; In re Estate of Colton, 129 Iowa 542, 105 N.W. 1008.
The only evidence as to whether Dorothy had been absent from Shelby County was that of a witness, who said that he had heard that Dorothy spent "a while" in Illinois, that he did not know "where she was residing during the periods of time I did not see her" and that "if she has lived out of Memphis since 1929, she has only lived outside of Memphis for very short periods". It will be observed that this witness did not testify of his own knowledge that Dorothy was absent from Shelby County at any time, but only that he had heard that she had spent a while in Illinois. Even if he had stated this fact of his own knowledge, it would have been insufficient to prove absence for a period of time sufficient for the obtaining of a divorce. His negative testimony that if she had been away it could only have been for very short periods strengthens the conclusion we have reached, but, if he had said that she had in fact been absent for very short periods, it would still have been insufficient to show that she had been absent for a long enough period to obtain a divorce.
That Dorothy had obtained no decree of divorce in Shelby County was proven by two witnesses: (1) an attorney at law, who testified that he carefully and more than once examined the judicial records of Shelby County and no such divorce appeared thereon; and (2) the manager of the Bluff City Abstract Company, of Shelby County, Tennessee, who said that his company kept a complete daily record of all divorces granted in Shelby County, and that this record does not disclose that Dorothy was divorced from the appellant. The competency of both of these witnesses is challenged; the contention of the appellant being that this proof should have been made by the custodian of the judicial records, in which decrees of divorce should appear. The custodian of the record, of course, would have been a competent witness, but according to 22 C.J. 1006, the majority of the courts that have dealt with the question hold that any competent person, who shows a sufficient knowledge of such records, may testify that a particular fact does not appear therefrom. With this holding we concur. It is difficult to perceive how the evidence of the custodian of these judicial records would have been here of any greater value than that of this attorney at law. The evidence of the manager of the abstract company was incompetent. He did not testify from his own examination of the records, but from a memorandum thereof made, insofar as the evidence discloses, by another. The evidence of this attorney, however, is sufficient to support the decree.
Affirmed.