190 Iowa 1005 | Iowa | 1921
The testimony on which said decree was entered was preserved and certified with the record. It shows the marriage with Johnson in the year 1891; that, in 1896, he left plaintiff, on the professed mission of finding work; that, during the first six months of his absence, he wrote to his wife, but that, since that time, he has not written her or visited her or contributed to her support, and that, until the divorce was granted, four years later, plaintiff had made her home with her parents. Her marriage with plaintiff took place in 1906, ten years after Johnson’s desertion, and six years after her divorce.
The trial below in the present case developed nothing whatever in support of the charge of cruel and inhuman treatment. Indeed, the allegations of the petition in that respect are wholly frivolous, and do not state a cause of action. In this court, appellant relies wholly upon his alleged right to have the marriage annulled on the ground that defendant had a living husband. It is conceded by appellant that the decree of divorce from Johnson is found in the records of the Illinois court, but it is alleged to be void and of no legal force or effect because of certain defects in the notice or summons by which the proceeding was instituted, and that, because of such defects, said court never acquired any jurisdiction to entertain such proceedings, or to render judgment or decree therein. In support of this contention, appellant introduced the depositions of two members of
“Every intendment of the law is in favor of matrimony. When a marriage has been shown in evidence, whether regular or irregular, and whatever the form of the proofs, the law raises a strong presumption of its legality, not only casting the burden of proof on the party objecting, but requiring him throughout, and in every particular, plainly to make the fact appear, against the constant pressure of this presumption, that it is illegal and void.”
This language was quoted by us approvingly in Leach v. Hall, 95 Iowa 611, 617, a case where the validity of a second marriage was attacked on the ground that the husband had been married to another woman still living, from whom there was no direct proof he had been divorced. In giving effect to the presumption to sustain the validity of the marriage, we quoted the
"The law presumes that this second marriage was lawful, and not criminal, and that either Leach or his first wife had obtained a divorce before the second marriage.”
We also there said, in terms quite pertinent to this case:
" If it be said that this rule requires one to prove a negative, it may be said in answer that very frequently one has the burden of proving a negative. Where a negative is essential to the existence of a right, the party claiming such right has the burden of proving it.”
Says the California court:
1 ‘ The burden of proof is on the party assailing a marriage on the ground that a former husband or wife is still alive, to show not only the former marriage, but also that it has not been dissolved by death or judicial decree.” Wilcox v. Wilcox, 171 Cal. 770 (155 Pac. 95).
Such, also, is the holding in Indiana. Boulden v. McIntire, 119 Ind. 574 (21N. E. 445). To overcome the presumption of the validity of a marriage, the evidence must be so strong and persuasive as to leave no room for reasonable doubt. Maier v. Brock, 222 Mo. 74. See, also, to same general effect, Hunter v. Hunter, 111 Cal. 261; Waddingham, v. Waddingham, 21 Mo. App. 609; Schuchart v. Schuchart, 61 Kan. 597; Coal Run C. Co. v. Jones, 127 Ill. 379; Harris v. Harris, 8 Ill. App. 57; Blanchard v. Lambert, 43 Iowa 228; Wingo v. Rudder, (Tex.) 120 S. W. 1073; In re Estate of Megginson, 21 Ore. 387 (14 L. R. A. 540); Jones v. Jones, 48 Md. 391; Potter v. Clapp, 203 Ill. 592; and In re Estate of Edwards, 58 Iowa 431. Such is the practically universal trend of the American precedents. Such, also, is the law of England, the birthplace of our common law. In Morris v. Davies, 5 Cl. and F. 163, Lord Lyndhurst says that the presumption of the validity of a second marriage "is .not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The evidence for the purpose of repelling it must be strong, distinct, satisfactory, and conclusive.” And in the case of Piers v. Piers, 2 House of Lords Cases *331, it was said by Lord Campbell that the validity of the mar-
To this end, it is well settled, as shown by cited cases and many more, which examination of the books will disclose, that, to be entitled to a decree of annulment, the plaintiff must overcome the presumption of the validity of his marriage by clear and satisfactory. proof: (1) That the defendant wife was the lawful wife of Johnson at the time of her marriage to plaintiff; (2) that Johnson was living at said date; and (3) that Johnson had not himself obtained a divorce. But, as we have already noted, there is not a word of evidence in the entire record to rebut the presumption that the first marriage had been dissolved by judicial decree. If it should be argued that the presumption of a divorce, arising from the second marriage, should not be given effect without some corroborating circumstance, such support is abundantly supplied in the admitted fact that the acts and conduct of both parties to the first marriage had, for 10 years or more, been wholly inconsistent with the continuance of the marriage relation between them. They had not met in all that time, so far as shown, nor had either made any assertion or claim of marital rights as against the other, nor had either contributed anything whatever to the support, care, or-comfort of the other. Though the wife, during all this period, continued her residence in Fulton County, which county was also Johnson’s home until he deserted her, and where his mother still lives, this man and woman had been and remained as utter strangers to each other. If the presumption of divorce between them depended on corroboration (which it does not), more persuasive circumstances could not be desired. Leach v. Hall, 95 Iowa 611, 617.
The fatal weakness of the plaintiff’s case for annulment of his marriage is too evident to justify us in prolonging this opinion, a:nd the decree of the trial court should be and is— Affirmed.