Aldridge v. Aldridge

77 So. 150, 116 Miss. 385

• Court: Mississippi Supreme Court
• Decided: October 15, 1917
• Status: Published

Opinion

Smith, C. J.,

delivered the opinion of the court.

This proceeding was instituted in the court below by appellee to obtain a divorce and alimony from her alleged husband, on the ground of cruel and inhuman treatment. Appellant in his answer to the bill denied the cruel and inhuman treatment, and further alleged that appellee was not his lawful wife, for the reason that at the time of her alleged marriage to .him she had a living and undivorced husband and that he had a living and undivorced wife. The evidence disclosed the marriage of appellant and appellee and their cohabiting thereafter as husband and wife; that about seventeen years prior to her marriage to appellant, appellee married one Milton Streetor, and their cohabiting together for some time thereafter as husband and wife; that she had not been divorced from him; that some years prior to appellee’s marriage with Streetor, -he married Molly Brown, who is still living, and their cohabiting together some time thereafter as husband and wife. As to whether or not Streeto-r and Molly were afterwards divorced does not appear from the record, the evidence being wholly silent relative thereto. It further appears from the evidence that appellant, some years prior to his marriage with appellee, married one Laura Thompson, who is still living; that they cohabited together as man and wife for some time thereafter and have never been divorced, which fact was known to appellee at the time she married appellant. There is also evidence tending to prove appellee’s claim that appellant’s treatment other was crnel and inhuman. Appellee offered, hut was not permitted by the court to prove, that she had aided appellant to accumulate what property he has. The court below granted appellee a divorce and by its final decree further ordered appellant to pay her the sum of one hundred and fifty dollars as a solicitor’s fee, and twenty-five dollars per month thereafter, as' alimony. After this appeal was taken, appellant died, and it was revived in the name of his administrator, so that the correctness of the decree appealed from, in so far as the granting of the divorce is concerned, is now merely incidental; the main question being whether or not the attorney’s fee and alimony should have been allowed.

Appellee’s marriage to Milton Streetor must be presumed to be valid, in the absence of evidence that Streetor had not been divorced from his former wife (Railway Co. v. Beardsley, 79 Miss. 417, 3 So. 660; Knights of Pythias v. Tucker, 92 Miss. 505, 46 So. 51; Bennet v. State, 100 Miss. 684, 56 So. 777), so that it necessarily follows, because she had not been divorced from Streetor, and also because appellant had not been divorced from Laura, that her marriage to appellant was void, and. the foundation of her right to alimony, according to Reed v. Reed, 85 Miss. 126, 37 So. 642, that is, a marriage valid in its inception, does not exist. -

We are not here called upon to determine whether or not this rule would apply in view of the provisions of section 1673, Code of 1906 (Hemingway’s Code, section 1415), in event appellee had married appellant without knowledge of the facts that render the marriage void.

Even if it be true that appellee aided appellant in accumulating what property he has, that fact‘would not render the allowance of alimony to her “equitable and just,” for under the facts here in evidence she not only was not appellant’s wife, but to all intents and purposes was simply Ms mistress. .

Tbe decree of tbe court below will be reversed in so far as it awards a solicitor’s fee and alimony, and tbe bill to that extent will be dismissed.

Reversed.