Summerville v. Summerville

— 412 — The opinion of the court was delivered hy Hadley, J. — Respondent brought this action against appellant for divorce and alimony. The complaint al-. leges that the two were, married at Lake Linderman, in British Columbia, on June 18, 1898; that .a child, two years of age at the time the complaint was drawn, was born as the issue of the marriage; that on or about August, 1899, appellant sent respondent out from Dawson City, where they were then residing, together with the child, then three ■ months old, and stated to respondent that he would send her money, and that he would also come out later in the autumn; that appellant did not come out, and has never sent respondent any funds of any kind since said date; that he has wholly deserted and abandoned her, and has contributed nothing for her support or that of her child, since August, 1899. The answer denies the marriage, and denies that respondent was a resident of King county at the time the action was commenced, or that she had resided in this state for one year immediately preceding the commencement of the action. The paternity of the child is admitted, and it is affirmatively alleged that by mutual agreement the two cohabited together during the summer of 1898 at Lake Linderman, aforesaid, and that they thereafter went to Dawson City, and there lived together until about the month of August, 1899, when they mutually consented to separate forever; that appellant then gave respondent one-half of all the property and money he then owned; and that it was further agreed that neither should have any claim against the other for any property thereafter accumulated by either, including any claim for alimony against appellant. These allegations are denied by the reply, and upon these issues the cause was tried by the court without a jury, resulting in a decree of divorce in favor of respondent, awarding her — 413 — the custody of the child and $20 per month alimony, to be paid monthly by appellant. From said decree this appeal was taken. It is insisted, first, that respondent failed to establish that she had been a resident for the required time before bringing the action. The suit was commenced in May, 1901. The evidence showed that respondent came out from Dawson in the summer of 1899. Much of the time following until this suit was begun she spent in Seattle. During a portion of the time she was in Victoria, where she says she went for employment. She testified, however, that her child meanwhile remained in Seattle, and that it was her constant intention to make Seattle her home. We think the evidence was sufficient to establish residence for a sufficient length of time to give the court jurisdiction. Appellant’s main contention is that respondent failed to establish the marriage. She was very young at the time of the alleged marriage, being not quite sixteen years of age. She testified that in the spring of 1898 she and her mother were together at Lake Linderman, where they met appellant. Appellant’s own testimony shows that he was then about thirty-five years of age. Respondent says that while at Lake Linderman they agreed to be married, and that afterwards appellant took her before some one whom she believed to be a clergyman, and who performed the marriage ceremony between them. She says she really was excited at the time, and cannot well remember all that occurred. She saw no marriage license or marriage certificate. She testifies that from that time she and appellant lived together as husband and wife, her mother also living with them. Appellant denies her statements about the marriage cerem'ony, but admits that they began living and cohabiting together at Lake Linderman, and that the — 414 — mother lived with them. They afterwards all went to Dawson together, where the two continued to sustain the relation already established, and meantime the child was born. Another witness, who was at Dawson at the time, testified that appellant introduced respondent there as his wife, and that she was held out by him as being such. Still another witness, who was at appellant’s house in Dawson, says that while there appellant asked respondent to bring the baby down from upstairs, and he then told the witness that the child was his, as did also the mother of respondent. The witness does not say that appellant told him in so many words that the mother of the child was his wife, but that in the manner above he held her out as being such. There was no record evidence of the marriage introduced. Respondent’s testimony is supported only by the circumstances detailed above, and by further circumstances occurring at the trial, having at least a tendency to impeach the testimony of appellant. A letter addressed to respondent after she left Dawson was shown him, in which she was addressed as the wife of the writer. The writer also designates himself at the close of the letter as “Hubby,” uses many endearing terms towards respondent, and expresses much solicitude about the health and welfare of the child. Appellant denied that he wrote the letter. He was asked, while on the witness stand, to write certain words from dictation, which he did. The words were extracts from the letter. The newly written words bore much the same general appearance as those .in the letter, notably in the matter of a misspelled woi'd; the word “both” being in each instance spelled “boath.” Another letter received by respondent closes with what purports to be the signature of appellant. That signature, by comparison with another in the record, admittedly genuine, appears to be that of appellant. The — 415 — writing in the body of the last-named letter appears to have been written by the same person who wrote the first-mentioned one. All the circumstances stated above, together with the further fact that appellant is flatly disputed by disinterested witnesses when he denies that he introduced and held out respondent as his wife at Dawson, must have led the trial court to the belief that he was impeached. Appellant was before the trial court, who observed his manner of testifying, and from anything which appears in the record we shall not say that the conclusion was incorrect. If appellant’s testimony as to the fact of a marriage is not given weight, then the only direct evidence as to the fact is that of respondent. Appellant takes the position that no more than a contract marriage was shown, and seems to assume that such was all that respondent meant to prove. He asserts that the alleged marriage occurred in British Columbia; that under the laws of England a contract marriage is void; that such was the law in 1858, when the Province of British Columbia adopted the English civil law as it then stood; and that such a marriage has, therefore, never since been valid in British Columbia. But, be that as it may, appellant is in error when he assumes that respondent undertook to prove only a common-law marriage. She introduced evidence of the performance of a regular, lawful marriage ceremony, and further evidence of subsequent cohabitation in substantiation of the fact that such a marriage had taken place. The intendment of the law is to presume from such testimony that a valid marriage existed, and, when such facts appear in evidence, the burden of proof is cast upon the party denying it to clearly show the contrary. “Every intendment of the law leans to matrimony. When a marriage has been shown in evidence, whether — 416 — regular or irregular, and whatever the form of the proofs, the law raises a strong presumption of its legality, — not only casting the burden of proof on the party objecting, but requiring him throughout, in every particular, to make plain, against the constant pressure of this presumption, the truth of law and fact that it is illegal and void. . . . Tt being for the highest good of the parties, of the children, and of the community, that all intercourse between the sexes in form matrimonial should be such in fact, the law, when administered by enlightened judges, seizes upon all probabilities, and presses into its service all things else which can help it, in each particular case, to sustain the marriage, and repel the conclusion of unlawful commerce.” 1 Bishop, Marriage, Divorce & Separation, § 956. Again, the same author, in § 959 of the same volume, says: “If a ceremony of marriage appears in evidence, it is presumed to have been rightly performed, and to have been preceded by all the needful preliminaries.” A marriage ceremony appeared in evidence in the case at bar. It is true appellant denied that there was any ceremony, but the court must have disbelieved him, and with that disposition of the testimony the fact of the ceremony stands established by the evidence of respondent. It follows from the rule stated by the learned author above that “all the needful preliminaries” are presumed to have preceded the ceremony, in the absence of convincing proof to the contrary. A valid marriage may be presumed to exist from general reputation among the acquaintances of the parties that such is the fact, when that reputation is accompanied by their cohabitation, and arises from their holding themselves out to the world as occupying that relation to which the law refers when marriage is mentioned. Wallace’s Case, 49 N. J. Eq. 530 (25 Atl. 260); White v. White, 82 Cal. — 417 — 427 (23 Pac. 276, 7 L. R. A. 799); Murray v. Murray, 6 Ore. 26; Arthur v. Broadnax, 3 Ala. 557 (37 Am. Dec. 707); Underhill, Evidence, p. 158, § 114. The exception to the rule that marriage may he presumed from evidence of cohabitation and repute is where a public or criminal offense is involved. The exception is based upon the ground that the presumption of marriage without proof of actual marriage cannot overcome the stronger presumption of innocence. White v. White, swpra; State v. Hodgskins, 19 Me. 155 (36 Am. Dec. 742) ; Stewart, Marriage & Divorce, § 126. The exception to the rule does not apply in this case, since it is a civil action. Upon the contrary, however, since the ordinary relations attending marriage existed between the parties, and since appellant admits that he is the father of the child, the law indulges every reasonable intendment, probability, and presumption in aid of the testimony that a marriage ceremony was performed, to the end that the innocence of the parties and the legitimacy of their child may be established. The amount of money allowed by the court was reasonable under the evidence. We find no reversible error, and the judgment is affirmed. Fullerton, O. J., and Mount, Dunbar and Anders, JJ., concur.