Uddyback v. Johnson

Shulman, Judge. Appellant-Uddyback, claiming to be the widow and sole heir of one Elbert Sirmans, petitioned the probate court for an order to declare no administration necessary. Appellee-Johnson, also claiming to be Sirmans’ lawful widow, filed a caveat to plaintiffs petition, alleging that plaintiff had entered into a subsequent marriage during the lifetime of the deceased. The caveat was sustained, and plaintiff appealed to the superior court. From a jury verdict in favor of defendant, plaintiff takes this appeal. Submitted January 8, 1979 — Decided April 4, 1979 — Rehearing denied May 3, 1979 — B. W. Slone, Benjamin Gratz, Jr., for appellant. George H. Wynn, for appellee. Appellant introduced evidence of a valid ceremonial marriage between the deceased and herself and testified that she neither filed nor received notice of a divorce. Appellant claims that, having established a prima facie case of the undissolved marriage between Sirmans and herself, the burden of evidence then shifted to defendant to rebut the validity of plaintiffs preexisting marriage. Appellant argues that defendant’s proof of her subsequent contract of marriage with Sirmans was not sufficient evidence to rebut plaintiffs prima facie case; that it was incumbent upon appellee to prove the dissolution of appellant’s prior marriage to Sirmans; and that, without such proof, appellant was entitled to judgment as a matter of law. We agree with appellant’s contentions and, accordingly, reverse the judgment below. This case is controlled by Smith v. Smith, 230 Ga. 616 (1) (198 SE2d 307). In accordance with Smith, once the plaintiff, as Sirmans’ spouse in life, introduced evidence of her ceremonial marriage to Sirmans, it was necessary for the defendant to produce evidence of the dissolution of Sirmans’ prior marriage. See also American Mut. &c. Ins. Co. v. Copeland, 113 Ga. App. 707 (1) (149 SE2d 402). As no evidence of a dissolution was introduced by the defendant, defendant failed to satisfy her burden of evidence. This being so, the evidence demanded a finding in favor of the validity of the first marriage. Id., Division 2. Plaintiffs motion for a directed verdict was improperly denied. Judgment reversed. Been, C. J., and McMurray, J., concur.