Opinion
15838.
JUNE 12, 1947.
Alimony. Before Judge Price. Tattnall Superior Court. January 25, 1947.
H. H. Elders, for plaintiff. M. W. Eason, for defendant.
There was no evidence to support the verdict, and the trial court erred in refusing a new trial.
No. 15838. JUNE 12, 1947.
Estella Guess brought a petition in the Superior Court of Tattnall County against Frank Guess, alleging: The defendant is a resident of Tattnall County. The plaintiff and the defendant were legally married on July 20, 1944. While the defendant was in the Army, he would not give the plaintiff her allowance benefits. Since he has returned from the Army, he will not live with her or support her. The defendant is an able-bodied man and can earn $3 per day. It will require $25 per month to support the plaintiff. She sued for temporary and permanent alimony and counsel fees.
Frank Guess filed his answer, in which he denied the paragraph of the petition in which the plaintiff alleged that they were legally married. He admitted that he refused to live with or support her.
On the trial, Estella Guess testified: On July 20, 1944, she and Frank Frasier went by bus from Reidsville to Lyons (in Toombs County), and went to the ordinary's office in the courthouse there. The defendant bought the marriage license, and the ordinary, P. S. Hogan, married them. Frank Frasier and Perry Conner were present and witnessed the marriage. She and the defendant spent the night in Lyons, came back to Reidsville the next morning, and the defendant had to go back to the Army. The ten letters exhibited to her were written to her by the defendant. She knew his handwriting and that he wrote and signed each one. The defendant is a strong young man and can earn $3 per day. It will require $25 per month to support her.
The plaintiff's mother, Pearl Conner, testified that the defendant had come to her home often to see the plaintiff, and had asked her to agree for the plaintiff to marry him, which she did.
Frank Frasier, sworn for the plaintiff, testified: He went with the plaintiff and the defendant to Lyons, and when they came to the courthouse, the defendant bought the marriage license, and the ordinary married the plaintiff and the defendant there. The witness and Perry Conner were present at the marriage. The affidavit held by Mike Eason, where they said he swore differently, was not read to him by Judge R. B. Collins.
The plaintiff introduced in evidence "a certified copy of the marriage license, which showed they were purchased on July 20, 1944, and the marriage ceremony then performed by the said Ordinary of Toombs County, Ga., on the same day;" and "it was agreed said ordinary, P. S. Hogan, had died some time in 1945." The plaintiff also introduced a certificate from the present Ordinary of Toombs County to show that on July 20, 1944, there were no applications for marriage licenses in such office and there had not been for two or three months before that date, as the ordinary could not get any printed. The present ordinary was working in the former ordinary's office at that time.
The defendant, Frank Guess, testified: He did not write or sign any of the letters exhibited by the plaintiff. He did not ask Pearl Conner to give him the plaintiff for a wife. He had seen the plaintiff during the week of the trial, but had not spoken one word to her.
Perry Conner, sworn for the defendant, testified that he did not witness the marriage of the plaintiff and the defendant.
Clarence Powell, sworn for the defendant, testified that he was present when Frank Frasier signed "that affidavit," and Judge R. B. Collins or the witness read every word of it to him and he signed it and said it was true.
The plaintiff, recalled, testified that on the Monday before the trial she was standing near the Tattnall Bank and the defendant came to her and asked her not to carry their case into the courthouse, and if she would not, he would take her back as his wife or pay her $25 a month as alimony.
The jury returned a verdict in favor of the defendant on the ground that there was no marriage. The court entered a judgment, reciting the verdict of the jury, adjudging that the defendant recover costs of the plaintiff, and decreeing that the purported marriage certificate on record in the office of the Ordinary of Toombs County be declared void and of no effect, and an entry of cancellation be entered on such certificate.
The plaintiff filed a motion for new trial on the usual general grounds, which was amended by the addition of one special ground based on newly discovered evidence. The exception here is to the overruling of the motion for new trial, as amended.
When a marriage license is returned to the ordinary issuing it by the person performing the marriage ceremony, together with his certificate thereon as to the fact and date of such marriage, it is the duty of the ordinary to record the license and certificate in a book kept by him for this purpose. Code, § 53-201. After such license, with the certificate thereon, has been duly recorded, it shall be forwarded by the ordinary to the State Board of Health, to be permanently retained by the Board. § 53-311.
In this case the jury's verdict finding that there had been no valid marriage between the parties resulted in the denial of the wife's claim for alimony. The wife had introduced in evidence a certified copy of a marriage license with a certificate of a marriage performed by the Ordinary of Toombs County. The Code, § 38-601, provides that proof of records may be made upon the certificate of any public officer as to the records pertaining to their respective offices.
The defendant did not attack the record in the office of the Ordinary of Toombs County, which showed a ceremonial marriage between the parties. No evidence was offered to impeach such record. The public record of a ceremonial marriage is conclusive evidence of such marriage, in the absence of a timely direct attack on such record, which attack must be supported by proper proof. Pope v. U.S. Fidelity Guaranty Co., 200 Ga. 69 ( 35 S.E.2d 899). No attack, either direct or indirect, having been made upon the record showing a ceremonial marriage between the parties, no issue was made as to the validity of such marriage.
In Pope v. U.S. Fidelity Guaranty Co., supra, this court held: "The testimony upon which the defendants rely as raising a jury question and preventing the direction of a verdict was not offered under any special pleadings for the purpose of amending or altering the execution dockets upon proof of entries fraudulently or wrongfully made, but apparently was offered only to contradict generally the written record. Hence, as to such testimony we are not required to do more than to rule, as we do here, that this parol evidence under the state of the pleadings is without probative value as against the clear and unambiguous written evidence shown by the execution dockets, and that to impeach these public records it would be first necessary to seek such relief by appropriate and timely special pleadings making a direct attack thereon, to which proceeding the clerk of the superior court, as the keeper of the records, should be made a party defendant by the defendant in execution, . . now a party to the present equitable proceeding."
It follows that the testimony relied upon by the defendant in this case was without probative value to contradict or disprove the written record of a ceremonial marriage between the parties, and there was no evidence to support the verdict finding for the defendant on the ground that there had been no marriage between the parties.
In Pritchett v. Ellis, 201 Ga. 809 ( 41 S.E.2d 402), it was held that a petition was insufficient to set forth a cause of action for cancellation of a marriage record which did not make the ordinary or the State Board of Health a party defendant. There being no direct attack made upon the record in the office of the Ordinary of Toombs County, showing a ceremonial marriage between the parties, and neither the Ordinary of Toombs County nor the State Board of Health being made a party in any way in this case, the record of the marriage of the plaintiff and the defendant could not be canceled or set aside in this proceeding. It was error to overrule the plaintiff's motion for new trial.
The amended ground of the motion for new trial, based on newly discovered evidence, does not require any ruling, since the evidence, if material, may be introduced upon another trial.
Judgment reversed. All the Justices concur.