The test of finality of a judgment or decree to support an appeal is not whether the cause remains in fieri awaiting further proceedings in such court to entitle the parties to their acquired rights, but whether such judgment or decree ascertains and declares such rights embracing the substantial merits of the controversy and the material issues litigated or necessarily involved in the litigation.
A denial of appellant's petition was, as to her, a final decree, and within the provision of Code, § 2837. Clifford v. Montgomery, 202 Ala. 609, 81 So. 551; First Nat. Bank v. Watters, 201 Ala. 670, 672, 79 So. 242; Plunkett v. Dendy,197 Ala. 262, 72 So. 525; De Graffenried v. Breitling,192 Ala. 254, 68 So. 265; State ex rel. v. Kemp. 205 Ala. 201,87 So. 836; Ex parte Elyton Land Co., 104 Ala. 86, 15 So. 939; Alexander v. Bates, 127 Ala. 328, 28 So. 415; Adams v. Sayre, 76 Ala. 509; Wynn, Adm'r. v. Bank, 166 Ala. 469,53 So. 228; Dickens v. Dickens, 174 Ala. 345. 56 So. 809; Gainer v. Jones, 176 Ala. 408, 58 So. 288. That is to say, the effect of the instant decree was to determine that appellant was not the widow of Franklin McClurkin, deceased, and the denying and dismissing of her petition for homestead exemption in his estate was a final determination of "the equities of the case" in so far as affected petitioner's rights in the properties and estate of said decedent.
Where the testimony is taken orally before the court as prescribed by the act of 1915 (page 705), whether in equity (Andrews v. Grey, 199 Ala. 152, 74 So. 62; Manchuria S. S. Co. v. Donald Co., 200 Ala. 638, 77 So. 12; Hess v. Hodges, 201 Ala. 309, 78 So. 85, L.R.A. 1918D, 858; Bolen
v. Bolen, 205 Ala. 114, 87 So. 797; Fitzpatrick v. Stringer,200 Ala. 574, 76 So. 932) or at law (Christie v. Durden,205 Ala. 571, 88 So. 667; Hackett v. Cash, 196 Ala. 403,72 So. 52; Ahlrichs v. Rollo, 200 Ala. 271, 76 So. 37; Finney v. Studebaker Corp., 196 Ala. 422, 72 So. 54; Gray v. Handy, 204 Ala. 559, 86 So. 548), this court will not disturb the judgment or decree of the trial court rested thereon, unless it is plainly erroneous. To such judgment or decree is accorded the weight of the verdict of a jury; the record showing that testimony in instant case was so taken by consent of parties.
In Carter v. Gaines, 204 Ala. 640, 87 So. 109, the subject of common-law marriage was discussed, the authorities collected, and it is unnecessary to prolong the same further than to say (see Farley v. Farley, 94 Ala. 501, 10 So. 646, 33 Am. St. Rep. 141; Beggs v. State, 55 Ala. 108; White v. Hill, 176 Ala. 480, 58 So. 444; Bynon v. State, 117 Ala. 80,23 So. 640, 67 Am. St. Rep. 163; Tartt v. Negus, 127 Ala. 301,28 So. 713) that to constitute such a marriage it is only necessary that there should be a mutual consent between the parties to be husband and wife, followed by cohabitation and living together as husband and wife, and upon the establishment of such relation there is a lawful marriage, without regard to what the parties consider the legal effect of such relation to be. Herd v. Herd, 194 Ala. 613, 69 So. 885, L.R.A. 1916B, 1243.
Though the evidence may tend to show an abandonment by Franklin McClurkin of the relation of husband and wife theretofore contracted or assumed with Della McClurkin, and an attempt thereafter to contract marriage with Mittie McClurkin — that they mutually agreed to be husband and wife, followed by cohabitation and living together for many years as man and wife — this did not destroy the former valid common-law marriage contracted by him with Della McClurkin. In the absence of the divorce of the parties, they were not thereafter free to contract marriage with others as was sought to be shown by the evidence of an attempted marriage with the said Mittie. Evans v. Evans, 200 Ala. 329, 76 So. 95. The evidence supported the finding of the court that Della McClurkin was the wife of Franklin McClurkin in the year 1888, and therefore at the time of his death.
A careful examination of the record impresses us that no reversible error has been committed. The decree of the circuit court, in equity, is affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.