Jakar v. Jakar

The opinion of the Court was delivered by Mr. Justice Watts. This action was for the purpose of having set aside as null and void for want of consent a marriage entered into between the plaintiff and defendant on September 25, 1918. The defendant was served with summons and complaint on December 13, 1918, ánd failed to serve notice of appearance, answer or demur. The case was referred to A. D. McFadden, Esq., on January 13, 1919, by his Honor, Judge Sease, to hear and determine all issues of law and fact, and report the same to the Court. He filed his report March 14, 1919, recommending that the marriage be set aside. His Honor, Judge Townsend, by a decree made May 21, 1919, reversed the report of the master, and dismissed the complaint. Eor a proper understanding of the case, both the report of the master and decree of Judge Townsend should be reported in the case. From the decree of Judge Townsend plaintiff appeals, and by three exceptions imputes error. Judge Townsend, by his decree, concurs generally in the master’s findings, except as to his findings that the evidence tended to show that the defendant had killed a former wife. This evidence he holds to be incompetent and hearsay, and cannot be considered in Court. There is no doubt it is incompetent, but in justice to the master the defendant made default and failed to appear; and did not object to the evidence, and frequently incompetent evidence becomes competent, when admitted without objection, and the whole evidence in the case portrayed the defendant as such an [301] adventurer and scoundrel that the master considered this statement and no doubt thought the defendant was capable of doing this very thing. His Honor found that the master was in error in finding that the marriage was never consummated by cohabitation that that finding is inconsistent with the circumstances, to which she testifies, that she and the defendant occupied the same room several days after the marriage, and fails to establish to the satisfaction of the Court the jurisdictional fact that the marriage was never consummated by cohabitation. His Honor puts his opinion from the circumstances against the sworn, unimpeached evidence of the plaintiff that there was no cohabitation. Here is a plain, simple, foreign girl, a milliner in the city of Columbia, away from her parents some distance (they live at Rowesville, S. C.), who is taken in by an adventurer and heartless scoundrel. She swears most positively that there was no cohabitation between them after marriage; explains that the influenza was prevailing at that time; that the defendant was detained at Camp Jackson; that she took the disease and was confined to her room; that the defendant was enraged at her being sick. If she needed circumstances to back up her testimony, we have here a strong circumstance that the defendant was angry on account of her sickness, because it foiled him and baffled him in his purpose to cohabit with her. On the question of cohabitation the decree of the Circuit Court is wholly without evidence to support it. Her positive evidence, unimpeached, supports her evidence, supported by all the circumstances in the case, his detention at Camp Jackson during the four days she had the room, her sickness, and by reason of which his lecherous desires- were foiled, and on this the finding of his Honor is reversed. As to the other ruling of his Honor, and the reasons given and authorities quoted which actuated him to reverse the [302] findings of the master and in dismissing the complaint, a much more serious question is presented. This State will not tolerate divorces, and the contract of marriage is held very sacred, and the annulling of the same contrary .to public policy. Every case must be judged by the particular facts of the case. No one will question, after hearing the evidence, that the plaintiff was credulous to the extent of being almost simple; that she was badly imposed upon by a villain of the deepest dye, an accomplished liar, “who did not think the truth, much less speak it;” one who robbed her and her friend by borrowing money, with no intent to pay it, giving bogus checks, with no funds to pay the same, in violation of the criminal laws of the State; one who is besmirched with the accusation of dealing foully with his former wife. Under all the facts of the case, and the gross fraud perpetrated on the plaintiff by the defendant, there being not the slightest suspicion of collusion in this proceeding between the parties the absence of divorce laws in this State, I think the judgment of the Circuit Court should be reversed, and the marriage declared not to be a valid contract', and is set aside and declared to be null and void. But a majority of the Court think different, and the judgment of the Circuit Court is affirmed.