Goset v. Goset

Wood, J., (after stating the facts). Where there is substantial evidence to sustain the findings of fact by the trial court sitting as a jury, such findings will not be disturbed. Stiewell v. American Surety Co., 70 Ark. 512. It is the long established rule, and consistently followed by this court, not to disturb the finding of a jury, or a trial court sifting as a jury, on issues of fact based upon legally sufficient evidence, and it is the duty of the appellate court in passing upon the issue of fact to indulge the strongest inference in favor of the finding that the evidence will warrant. The finding of the trial court, based upon conflicting evidence, is conclusive upon appeal. See Glasscock v. National Box Co., 104 Ark. 154; Williams v. Board of Directors, 100 Ark. 166; Toledo Computing Scales Co. v. Stephens, 96 Ark. 606; St. Louis, I. M. & S. Ry. Co. v. Hill, 74 Ark. 478, and numerous cases collated in volume 4, Crawford’s Digest of Arkansas Reports, page 75, under Appeal and Error. Applying this familiar rule to the testimony in this record, the finding of the court must be sustained. There was testimony to warrant a finding that at the time of the alleged intermarriage of appellant with Goset, her husband, C. H. Abbott, was living. One witness testified he saw Abbott in August, 1913, at Rattoon, New Mexico. Appellant admitted, for the purpose of getting a trial, that Abbott himself, if present, would swear to the facts set up in the motion for a continuance. The court might have found that this was tantamount to an admission upon the part of appellant that Abbott was living at the time of the trial. However much we may differ from the trial court on this issue of fact, the weight of the evidence and the credibility of the witnesses was a matter for the trial court to determine, and his finding, based on the evidence, is conclusive on us. The uncontradicted evidence shows that appellant and Abbott were married and that they were never divorced. It therefore follows that the finding of the court that appellant had a living husband from whom she had not been divorced at the time of her alleged intermarriage with Goset is sustained by the evidence. Learned counsel for appellant, to support his contention that appellant’s intermarriage with Goset was legal, invokes section 5178 of Kirby’s Digest, which provides: “In all cases where any husband abandons his wife, or wife her husband, and resides beyond the limits of this State for the term of five successive years, without being known to such person to be living during that time, their death shall be presumed, and any subsequent marriage entered into after the end of the said five years shall be as valid as if such husband or wife was dead.” But giving the evidence its strongest probative force in favor of the finding and judgment of the lower court, the above statute can not avail appellant. The testimony was sufficient to warrant a finding that Abbott had left his wife and had gone to foreign States and a foreign country in search of health; that this was done by mutual agreement between the appellant and Abbott. True, the testimony of appellant tends to show that in the spring or winter of 1896 or 1897 they left this State and went to Texas and other foreign States on an excursion of health, and that she left him in Old Mexico in 1899, and that she had not heard from him since 1900. But there was testimony from which the court might have found that Charles H. Abbott, the husband of appellant, was in this State as late as 1903 or 1904; for one witness testified that he had seen Chas. Abbott when the Midland Valley Railroad was being built at Montreal, and it was shown that the Midland Valley Railroad was built in 1903 or 1904. He did not know whether Charles Abbott was the husband of appellant or not, but he had seen her several times. Another witness testified that he thought he saw Charles H. Abbott in this State in 1902 or 1903. While he did not know Abbott’s wife, Abbott pointed appellant out to Mm as bis wife. This testimony was sufficient to warrant a finding that Charles H. Abbott had not been absent from the State for a period of five consecutive years before appellant’s intermarriage with Goset, which took place in 1905. Although appellant testified that she had not heard from her former husband, Abbott, since January, 1900, and did not know that he was alive and believed that he was dead; yet, the testimony of Jane Clayton tends to contradict her, and tends to show that appellant knew that her husband, Abbott, was alive within five years before she married Goset. So the presumption of death of a husband that is raised by his absence for a period of five consecutive years from the State without knowledge on the part of the wife of his being alive, is overcome by the testimony which warranted the court in finding that he was alive and in the State within that period. It follows therefore that the facts as they might have been and were found by the court preclude the appellant from having the benefit of the above statute. As there was testimony to sustain the finding of the court that C. H. Abbott, the husband of the appellant, was alive and residing within the State within a period of five years before appellant’s alleged intermarriage with Goset, it follows that her intermarriage with him was void and of no effect. Section 5176 of Kirby’s Digest provides that “no subsequent or second marriage shall be contracted by any person during the lifetime of any former husband or wife of such person unless the marriage of the former husband or wife has been dissolved for one of the causes set forth in the law concerning divorces by court of competent authority.” As the uncontroverted evidence shows that appellant had not been divorced and there was evidence to warrant a finding that her husband was alive and residing in this State within five years previous to her alleged intermarriage with Goset, the court’s finding to the effect that “appellant was not the widow of John Gloset, deceased, and that the alleged marriage of her to John Gloset is void and of no effect, and that she is not entitled to any part of the estate of John Gloset, deceased,” must be sustained. “The marriage of a man and a woman where one of them has a husband or wife by a prior marriage, who is then living and undivorced, is void and not merely voidable. Being a nullity, no decree is necessary to avoid the same.” Cartwright v. McGowan, 121 Ill. 388, 2 Am. St. Rep. 105. Appellant having shown that her alleged intermarriage with Gloset was solemnized in due form under the statute, would be entitled to recover as his widow in the absence of proof to warrant a finding that such intermarriage was illegal and void. For in the absence of proof to the contrary, appellant would be aided by the presumption that if her husband were living she was divorced from him, or by the presumption that her first husband was dead at the time of her marriage to Gloset. For the law is that where a woman contracts a second marriage while her first husband is alive, it will be presumed, in favor of the validity of the second marriage, that the first marriage was legally dissolved by a divorce before the second marriage was entered into, or that the former husband was dead at the time of the second marriage. Bolden v. McIntyre, 119 Ind. 514. See also Cash v. Cash, 67 Ark. 278. But in this case the presumptions that would otherwise be indulged in favor of the appellant have been overcome by the evidence upon which were based the findings of the court. The proof by appellant of her intermarriage with Gloset in regular form shifted the burden to the appellee to show that such marriage was illegal and void, but appellee has met that burden and has overcome the presumptions in favor of the marriage being legal by evidence which warranted the court in finding that such marriage was invalid. In Jones v. Jones, 28 Ark. 19, it is said: “The evidence of marriage may he rebutted by proving that any circumstances rendered indispensably necessary by law to a valid marriage were wanting. ’ ’ The judgment is therefore affirmed.