Kelley v. County of Kitsap

[522] The opinion of the court was delivered by Scott, J. The respondent moves to strike the statement and to dismiss the appeal, because no bond upon the appeal was given, and for other reasons stated. The county and said Williams both gave a notice of appeal, but he failed to give a bond. None is required upon the part of the county. The notices of appeal were sufficient to give this court jurisdiction of the cause for the county, and its fights could not be affected by the failure of the respondent Williams to perfect the appeal upon his part. In all other respects the case was regularly appealed, and the motions are denied. In the year 1870, one Michael Kelley died in the county of Kitsap, Territory (now state) of Washington, and the defendant, Theodore Williams, administered his estate. Williams, after holding the estate for about eighteen months, and, searching for, but finding no heirs, rendered a final account of his trust, which was approved by the probate court of said county, and in 1871 he turned over to said county the sum of §1,850, the proceeds of said estate remaining after the payment of its debts. The plaintiff seeks to recover this money from the defendants upon the ground of his being an heir to said Michael Kelley, deceased. The county of Kitsap admits the possession of the money, but by its pleading puts upon the plaintiff the burden of establishing his right to the same; that is, to show himself to be the child of Michael Kelley, deceased, and his lawful heir. Plaintiff contends that his mother, an Indian woman, who was at some time known as Julia, or Julia Descartes, was the wife of said Michael Kelley, and that said Michael Kelley was his father; and that he was born at Port Orchard, in said county, about the month of March, 1867, while the relation of husband and wife existed between said Kelley and saicllndian woman, claiming that his mother [523] and said Kelley were married on or about the 15th day of January, 1865, in said county, by duly consenting to be husband and wife, and that, after so consenting, they did cohabit and live together as such agreed husband and wife. There is no claim that any marriage ceremony was ever performed for the parties. It is admitted that said Indian woman died at Port Madison, in said county, on or about May 1, 1887. There is no claim that plaintiff was the illegitimate child of said Kelley,, and that Kelley ever acknowledged himself in writing, signed in the presence of a competent witness, to be the father of the plaintiff. A trial by jury was had, which resulted in a verdict and judgment for the plaintiff. In re McLaughlin's Estate, 4 Wash. 570 (30 Pac. Rep. 651), this court, in considering the legislative enactments there involved, held that marriages as at the common law were not valid here; and the statutes in force when it is claimed the marriage here in question took place are sufficiently similar to the statutes considered in the McLaughlin case to bring this action within the holding there. See Laws 1854, p. 404; Laws 1855, p. 33; Laws 1859. p. 24. No proof was made as to what ceremonies were resorted to by the tribe of Indians to which this woman belonged in marriages among themselves, and there is no question here of recognizing or repudiating a marriage which, according to their customs, they recognized as valid. A good deal of testimony was introduced as to the way Indian women were procured by white men, in which there was no substantial conflict. In such instances a payment of money was usually made to her relatives, varying in prices from a very few to several hundred dollars in some cases. If she left him without cause, the Indians would return the money. If he sent her away, or left her, they would not return it, unless he could show a satisfactory reason therefor. As to what were considered sufficient [524] reasons we are not informed by the testimony; but it is clearly apparent that white men had no difficulty in obtaining Indian women to live with them by paying money to their relatives, and that the practice was a somewhat common one in the earlier history of the territory. The relation thus instituted could be abandoned by either at pleasure, and in most cases it was sooner or later abrogated by the act of the parties. In some instances, however, the parties continued to live together, and were subsequently formally married to each other. The testimony in this instance shows that said Michael Kelley obtained this woman by paying two or three dollars in silver to her sisters; that they lived together a short time, and that she left him, she being at the time pregnant, and that the plaintiff was the issue. All of the testimony in relation to these parties agreeing to live together, and their cohabitation, was objected to by the defendants, and it should have been ruled out under the circumstances. Such arrangements could hardly amount to marriages under any law. Reversed and remanded, with instructions to dismiss the action. Dunbar, C. J., and Hoyt, Stiles and Anders, JJ., concur.