4 S.D. 305 | S.D. | 1893
This is an appeal from an order.granting temporary alimony and expense money, penclente lite, in an action for a divorce, brought by respondent against appellant. The complaint in that action alleges that the parties were married in the city of Albany, N. Y., on the 14th day of July, 1889, and that they have ever since been husband and wife. The defendant, in his answer, denies that he was at that time, or at any other time, legally married to the plaintiff. He admits that, a marriage ceremony was performed at the time and place as alleged in the complaint, but avers at that time, and ever
. It is further contended that the allegation contained in the answer that the marriage between Lewis Osborn and plaintiff is yet valid and existing, and is now in force, and that plaintiff knew at the time of. her marriage to the defendant that the marriage between herself and- said Lewis Osborn was • existing and in force, is á well-pleaded counter-claim, .to which the plaintiff was bound to reply; and failure to do so was.- an admission of .the facts alleged. Admit this to be true, yet what are the facts admitted? First, her former marriage; and, second, that her former husband is alive. Both of these allegations are not entirely inconsistent with a valid marriage to defendant. In any event, the marriage of plaintiff to. defendant does not appear from defendant’s answer to be void, but voidable.
Section 2239, Comp. Laws, provides that a subsequent •marriage contracted by any person during the life of a former husband or wife of such person is illegal and void from the beginning, unless such former husband or wife was absent, and not known - to such person to be living, for the space of five ■successive years immediately preceding such subsequent marriage. Then granting there was such former marriage, that plaintiff’s former husband is alive, and that no divorce has been granted her, still the marriage under the above statute, may be valid. This depends upon the knowledge of the plaintiff of that fact. Her affidavit shows she had no such knowledge, which the rule which we ha?e invoked from New York says may controvert the allegation in the pleading. This affidavit is not overturned by pther facts or circumstances which would establish its falsity or untruthfulness, so far as the bona fides of the plaintiff is concerned. Therefore, in either view of the case, from the pleadings and facts as shown by the affidavits, we are of the opinion that the court below did not err in granting the temporary alimony and counsel fees in the case.
The defendant further contends that, if the statute and facts in the case warranted temporary alimony, the allowance