258 Mo. 391 | Mo. | 1914
Plaintiff, claiming to be the common-law wife of defendant, sues for divorce and the sum of fifty thousand dollars as alimony in gross. The petition alleges ‘ ‘ that plaintiff and defendant were lawfully married on or about January 1, 1905, in the State of Illinois; that they continued to live together as man and wife from that date till May 30, 1907; that, during all that time, she faithfully demeaned herself and discharged all her duties as the wife of defendant,” etc.; “but that defendant wholly disregarding his duties as the husband of plaintiff has been guilty of committing adultery with one Lina. Baskett at the county of Monroe and State of Missouri, which said act of adultery, so committed at the said county of Monroe and State of Missouri, was by defendant so committed during, the married life of plaintiff and defendant; ’ ’ that plaintiff was at the time of filing the suit a resident of Monroe county, Missouri. The petition describes the real and personal property owned by defendant, alleged to be of the value of $100,000, and prays that she be allowed as alimony in gross the sum first above mentioned.
The answer denied the marriage with plaintiff; denied tne adultery with Lina Baskett but alleged that defendant and said' Lina Baskett were lawfully married on the 16th day of May, 1907. The answer further denied that plaintiff was a resident of Monroe county,Missouri, at the date of the filing of the petition, or that he was the owner of property to the value alleged in the petition.
Trial was had in the circuit court of Monroe county. The court found the issues in favor of the defendant and specifically found that plaintiff and defendant were never married. A decree was entered dismissing plaintiff’s petition. Plaintiff duly perfected an appeal to the St. Louis Court of Appeals, but that court properly certified the case here because of the jurisdictional amount involved. The main contested
“Q. Now I will ask you was there any agreement, if so, just state the agreement between you as well as you can remember it? A. I asked him to fulfil his pledge to me, and he said, ‘the folks at home would almost lynch him, her people would be very angry, they did not seem to' like him, and they would almost lynch him if he married me now, at that time, so soon after her death, ’ but he said, ‘ a public marriage is not necessary at all, that the words that the preacher says and the fees he receives do not make us husband and wife, ’ he told me, ‘we love each other,’ he asked me ‘if I did not love him,’ I said ‘yes,’ he said, ‘we love each other well enough to be husband and wife now,’ and I said ‘yes,’ and he put his arms round me and kissed me and says ‘Sweetheart, you are my wife now, you take me as your husband now and all through life and I take you as my wife and we are husband and wife,’ and I said ‘Yes.’
“Q. After that did you live and cohabit together? A. Yes, sir.”
At the time of the marriage, defendant’s home was at Jacksonville, Illinois, but his occupation was that of a paving contractor and the greater portion of his time was spent at Centraba, Illinois, and other towns where he had contracts for paving work. Plaintiff further testified that she and defendant continued to live together as man and wife until May, 1907; that during this time defendant visited plaintiff about once a week, spending the remainder of his time at different cities where his paving contracts were being performed. Plaintiff resided in Chicago two or three years, next prior to the marriage, having moved there from Bloom
Centralia, 111., 5/29 1907 No. 15
MERCHANT’S STATE BANK (hearer)
Pay to Rachel Pierce or order $250.00
Two Hundred & Fifty & No/100 Dollars
Advance payment of personal settlement Tohn Cherry of all claims J A V
The check was indorsed ‘ ‘ Rachel Pierce. ’ ’ On the same day an agreement was entered into between the plaintiff and defendant, as follows:
“I agree to pay Rachel Pierce otherwise known as Mrs. J. Cherry the sum of fourty dollars per month so long as she does not marry or have an oather man and I rachel pirce known as Mrs. John Cherry aggrees to in no way annoy John Cherry so long as he fulfills his obligations to me.
(signed) John Cherry,
Rachel Pierce. ’ ’
One of defendant’s witnesses testified that he called at plaintiff’s residence in Chicago in 1905 and that a name card was on the door bearing the name “Maria Watson.” Defendant introduced in evidence plaintiff’s first verified petition filed in this case. In that petition, plaintiff alleged that she and defendant were married on the 25th day of December, 1905, at East St. Louis, Illinois. Plaintiff, on rebuttal, testified that she did not read her first petition before swearing to it. She denied having the card “Maria Watson” on her door in 1905; and denied having a revolver at the time she talked with defendant at Mc-Leansboxo; she further testified that when she met defendant at Centralia in May, 1907, he demanded
OPINION.
As will be noted from a reading of the foregoing statement of facts, the evidence in the case is conflicting. Plaintiff testified that the marriage agreement was entered into on Sunday, January 1, 1906, and that cohabitation followed. Defendant denied the marriage contract and denied that he and plaintiff were ever married. He testified that on January 1, 1905, he was in the city of Jacksonville, Illinois, attending the annual celebration of *his father’s birthday. In this he is corroborated by two witnesses— his sisters. Plaintiff introduced in evidence a letter
Adding to the uncertainty or doubt arising from the conflict of the evidence, the further uncertainty or doubt created by the evidence tending to show that apparently the sexual relations between plaintiff and defendant were about the same before as after the alleged marriage, that plaintiff upon meeting her brother an hour or so after the alleged marriage admits that she did not tell him of the marriage; that plaintiff moved to New Mexico for the purpose of establishing herself in business as a manicurist, returning after several months to Centralia, Illinois, where defendant was temporarily located, and registering at a hotel there under the name of “Mrs. C. John,” as she says, to avoid notoriety; that she there received a check from defendant, made payable to her as Bachel Pierce (her maiden name), afterwards indorsing the check in that name; that she there also entered into a certain contract with defendant signing her said maiden name, in which contract she is referred to as “Rachel Pierce, otherwise known as Mrs. John Cherry,” we do not feel justified in saying, and therefore will not say, that the court erred in finding that plaintiff and defendant were never married.
It, therefore, follows that the court did not err in finding the issues for defendant and entering a decree dismissing plaintiff’s petition.
The judgment is affirmed.
The foregoing opinion of Williams, C., is adopted as the opinion of the court.