HALLEY, J.
The defendant in error, plaintiff below, and the plaintiff in error, defendant below, who will be referred to as they appeared in the trial court, were married at Norman, Oklahoma, on June 13, 1935, in a ceremonial marriage, and lived together as man and wife until on or about September 7, 1947. During their marriage they accumulated furniture and a home (subject to a mortgage for $3,000) located in Oklahoma City, and some cash and an automobile.
[61]*61The evidence showed that both plaintiff and defendant worked during their married life and contributed to the purchase of the property accumulated. The evidence further showed that the plaintiff was in poor health, and had been for several years. The evidence showed that both plaintiff and defendant had entered into their marriage in good faith; however, that the plaintiff had been previously married to a man by the name of Lenor Willgrube, and of that marriage one child had been born, who was a semi-invalid and lived with the parties. The evidence further showed that the plaintiff had never obtained a divorce from her former husband. She did file a petition for divorce, and notice by publication was issued, and affidavit of mailing and registered letter returned, and a publisher’s affidavit was filed, but there was no record of a judgment or order of the district court granting the divorce.
The trial court made a division of the property, giving the wife the real estate, subject to mortgage, the furniture in the house, and fixed alimony in the sum of $1,000, payable at $100 per month for ten months. The defendant was awarded the Ford automobile and $400 in cash. The defendant appealed from the court’s judgment and gave supersedeas bond, and while the case was still pending in the district court and before the appeal to the Supreme Court, and before the motion for new trial had been passed on, the plaintiff filed a motion to be allowed alimony pendente lite, which the court granted, and required the defendant to pay the plaintiff $100 per month during the pendency of the action. The defendant made some payments on this alimony pendente lite, but has failed to pay the same since the case was appealed to the Supreme Court; and the plaintiff has filed a motion to dismiss in this court.
Inasmuch as the defendant relies primarily on the proposition that the plaintiff was not legally competent to enter into a marriage with the defendant, and that the trial court was without authority, for that reason, to make such an order as it had entered as final judgment in the case, we will dispose of the case on its merits rather than on the motion to dismiss the appeal.
The defendant admitted that he and the plaintiff were united in marriage by a duly performed ceremony, and that they lived together as man and wife for more than twelve years, and that at the time he entered into said marriage he did so in good faith; but he is now attacking the validity of that marriage. The law is very well settled in this jurisdiction that the burden of proof is upon the person who attacks the validity of a second marriage to show that neither party to the first marriage obtained a divorce, though this involves the proving of a negative. Hale v. Hale, 40 Okla. 101, 135 P. 1143; Chancery v. Whinery, 47 Okla. 272, 147 P. 1036; Lewis v. Lewis, 60 Okla. 60, 158 P. 368; Jones v. Jones, 63 Okla. 208, 164 P. 463; Cox v. Cox, 95 Okla. 14, 217 P. 493, 34 A.L.R. 432; Templeton v. Jones, 127 Okla. 1, 259 P. 543; Sam v. Sam, 172 Okla. 342, 45 P. 2d 462. Certainly the defendant did not meet the burden that was upon him in this case to show that Lenor Willgrube did not himself obtain a divorce.
In addition, however, the trial court found that Lenor Willgrube was presumed to be dead after the expiration of seven years from the filing of the divorce suit by the plaintiff, and that the parties, having continued to live together after the seven-year period, were assumed to have exchanged matrimonial consent as soon as the disability was removed, and that their relation was stamped with the status of a valid marriage. It was so held in Re Cully’s Estate, 189 Okla. 419, 117 P. 2d 126. It was also held in Bowles v. McCarty, 195 Okla. 252, 157 P. 179, that where the parties comply in good faith with the forms at law which would give rise to their marriage but for one of them being under disability, as in this case, with the plaintiff having what is supposed to be a living undivorced hus[62]*62band, the law infers that the matrimonial consent was exchanged between them upon the removal of the legal disability, as by the granting of a divorce, and stamps their continued relation with the status of a valid marriage. We say that such inference will be made where more than seven years has elapsed and the first husband has not been heard from. So, in our opinion, the marriage between plaintiff and defendant is a valid marriage, and the defendant has wholly failed to maintain his attack upon the said marriage.
We come, then, to the question of whether or not a trial court has a right to make an order for temporary alimony during the pendency of the appeal. Oklahoma has not squarely passed upon that proposition. The Supreme Court has the right to make such an order after the appeal is filed here. Hansing v. Hansing, 76 Okla. 34, 183 P. 978; Spradling v. Spradling, 74 Okla. 276, 181 P. 148. In our opinion, there is no sound reason, as long as the case has not been appealed to the Supreme Court, why the trial court cannot make an order for alimony pendente lite in such sum as will be reasonable under the circumstances. We call attention to the statement in 27 C. J. S., Divorce, §203(2), which is as follows:
“Pending Appeal. — In general, the trial court has jurisdiction to make allowances pending an appeal, and in some jurisdictions it is held that only the trial court may make such allowances, while in others the appellate court may do so.”
Clearly, we have settled the proposition that we have the right, when a case is appealed to this court, to allow alimony while the case is pending on appeal; and certainly, after studying the cases cited in the note to the above reference in C. J. S., we are of the opinion that as long as the case is pending in the trial court it has the right to fix alimony pendente lite, for the reason that the case might pend in the trial court on motion for new trial, as was done in this case, for several weeks, and then the full limit could be taken on the filing of the appeal, and the plaintiff could have been without funds for a period of four to six months. In this case a period of four months elapsed from the time of the entry of the decree until the case was filed in this court, and the plaintiff was entitled to be supported by the defendant during that time.
Another question presents itself, and that is, whether or not the defendant shall receive credit on the judgment of permanent alimony for the payments that he made on order for temporary alimony pending the outcome of the appeal. The plaintiff received under the final judgment, in addition to the real property and household furniture, $1,000 alimony, to be paid at the rate of $100 per month beginning January 1, 1948, until paid. The defendant superseded this part of the judgment by giving a bond in the amount of $2,500. The plaintiff did not appeal from the judgment in any particular.
The syllabus in Smyth v. Smyth, 201 Okla. 694, 209 P. 2d 709, says that payments on temporary alimony cannot be credited on the judgment for permanent alimony. In this respect it is too broad.
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HALLEY, J.
The defendant in error, plaintiff below, and the plaintiff in error, defendant below, who will be referred to as they appeared in the trial court, were married at Norman, Oklahoma, on June 13, 1935, in a ceremonial marriage, and lived together as man and wife until on or about September 7, 1947. During their marriage they accumulated furniture and a home (subject to a mortgage for $3,000) located in Oklahoma City, and some cash and an automobile.
[61]*61The evidence showed that both plaintiff and defendant worked during their married life and contributed to the purchase of the property accumulated. The evidence further showed that the plaintiff was in poor health, and had been for several years. The evidence showed that both plaintiff and defendant had entered into their marriage in good faith; however, that the plaintiff had been previously married to a man by the name of Lenor Willgrube, and of that marriage one child had been born, who was a semi-invalid and lived with the parties. The evidence further showed that the plaintiff had never obtained a divorce from her former husband. She did file a petition for divorce, and notice by publication was issued, and affidavit of mailing and registered letter returned, and a publisher’s affidavit was filed, but there was no record of a judgment or order of the district court granting the divorce.
The trial court made a division of the property, giving the wife the real estate, subject to mortgage, the furniture in the house, and fixed alimony in the sum of $1,000, payable at $100 per month for ten months. The defendant was awarded the Ford automobile and $400 in cash. The defendant appealed from the court’s judgment and gave supersedeas bond, and while the case was still pending in the district court and before the appeal to the Supreme Court, and before the motion for new trial had been passed on, the plaintiff filed a motion to be allowed alimony pendente lite, which the court granted, and required the defendant to pay the plaintiff $100 per month during the pendency of the action. The defendant made some payments on this alimony pendente lite, but has failed to pay the same since the case was appealed to the Supreme Court; and the plaintiff has filed a motion to dismiss in this court.
Inasmuch as the defendant relies primarily on the proposition that the plaintiff was not legally competent to enter into a marriage with the defendant, and that the trial court was without authority, for that reason, to make such an order as it had entered as final judgment in the case, we will dispose of the case on its merits rather than on the motion to dismiss the appeal.
The defendant admitted that he and the plaintiff were united in marriage by a duly performed ceremony, and that they lived together as man and wife for more than twelve years, and that at the time he entered into said marriage he did so in good faith; but he is now attacking the validity of that marriage. The law is very well settled in this jurisdiction that the burden of proof is upon the person who attacks the validity of a second marriage to show that neither party to the first marriage obtained a divorce, though this involves the proving of a negative. Hale v. Hale, 40 Okla. 101, 135 P. 1143; Chancery v. Whinery, 47 Okla. 272, 147 P. 1036; Lewis v. Lewis, 60 Okla. 60, 158 P. 368; Jones v. Jones, 63 Okla. 208, 164 P. 463; Cox v. Cox, 95 Okla. 14, 217 P. 493, 34 A.L.R. 432; Templeton v. Jones, 127 Okla. 1, 259 P. 543; Sam v. Sam, 172 Okla. 342, 45 P. 2d 462. Certainly the defendant did not meet the burden that was upon him in this case to show that Lenor Willgrube did not himself obtain a divorce.
In addition, however, the trial court found that Lenor Willgrube was presumed to be dead after the expiration of seven years from the filing of the divorce suit by the plaintiff, and that the parties, having continued to live together after the seven-year period, were assumed to have exchanged matrimonial consent as soon as the disability was removed, and that their relation was stamped with the status of a valid marriage. It was so held in Re Cully’s Estate, 189 Okla. 419, 117 P. 2d 126. It was also held in Bowles v. McCarty, 195 Okla. 252, 157 P. 179, that where the parties comply in good faith with the forms at law which would give rise to their marriage but for one of them being under disability, as in this case, with the plaintiff having what is supposed to be a living undivorced hus[62]*62band, the law infers that the matrimonial consent was exchanged between them upon the removal of the legal disability, as by the granting of a divorce, and stamps their continued relation with the status of a valid marriage. We say that such inference will be made where more than seven years has elapsed and the first husband has not been heard from. So, in our opinion, the marriage between plaintiff and defendant is a valid marriage, and the defendant has wholly failed to maintain his attack upon the said marriage.
We come, then, to the question of whether or not a trial court has a right to make an order for temporary alimony during the pendency of the appeal. Oklahoma has not squarely passed upon that proposition. The Supreme Court has the right to make such an order after the appeal is filed here. Hansing v. Hansing, 76 Okla. 34, 183 P. 978; Spradling v. Spradling, 74 Okla. 276, 181 P. 148. In our opinion, there is no sound reason, as long as the case has not been appealed to the Supreme Court, why the trial court cannot make an order for alimony pendente lite in such sum as will be reasonable under the circumstances. We call attention to the statement in 27 C. J. S., Divorce, §203(2), which is as follows:
“Pending Appeal. — In general, the trial court has jurisdiction to make allowances pending an appeal, and in some jurisdictions it is held that only the trial court may make such allowances, while in others the appellate court may do so.”
Clearly, we have settled the proposition that we have the right, when a case is appealed to this court, to allow alimony while the case is pending on appeal; and certainly, after studying the cases cited in the note to the above reference in C. J. S., we are of the opinion that as long as the case is pending in the trial court it has the right to fix alimony pendente lite, for the reason that the case might pend in the trial court on motion for new trial, as was done in this case, for several weeks, and then the full limit could be taken on the filing of the appeal, and the plaintiff could have been without funds for a period of four to six months. In this case a period of four months elapsed from the time of the entry of the decree until the case was filed in this court, and the plaintiff was entitled to be supported by the defendant during that time.
Another question presents itself, and that is, whether or not the defendant shall receive credit on the judgment of permanent alimony for the payments that he made on order for temporary alimony pending the outcome of the appeal. The plaintiff received under the final judgment, in addition to the real property and household furniture, $1,000 alimony, to be paid at the rate of $100 per month beginning January 1, 1948, until paid. The defendant superseded this part of the judgment by giving a bond in the amount of $2,500. The plaintiff did not appeal from the judgment in any particular.
The syllabus in Smyth v. Smyth, 201 Okla. 694, 209 P. 2d 709, says that payments on temporary alimony cannot be credited on the judgment for permanent alimony. In this respect it is too broad. It was not necessary to make such a statement in that case, as there the temporary alimony was allowed by the appellate court,. and in finally determining the equities in that case the allowance for temporary alimony was considered by us. It is a matter for this court to determine whether or not such credit shall be allowed on permanent alimony for payments made on temporary alimony. Smyth v. Smyth, supra, insofar as it conflicts with our decision here, is overruled.
The defendant claims that too large a share of the accumulated property was given to the plaintiff. It is well settled in this state that in determining what part of the property jointly acquired during the marriage shall be [63]*63given to each spouse, the trial court has wide latitude. Clark v. Clark, 177 Okla. 542, 61 P. 2d 28. Also, the equitable division by the court of the jointly-accumulated property of the parties does not necessarily mean equal division. Hughes v. Hughes, 177 Okla. 614, 61 P. 2d 556.
We have examined the evidence in this case, and we cannot say that the trial court’s division of the jointly-acquired property between the parties was not just and reasonably, within the meaning of the statute and upon the facts of the record. Carter v. Carter, 181 Okla. 204, 73 P. 2d 404. In our opinion, the amount of alimony allowed in this case was very reasonable in the light of the evidence and considering the situation of both parties— the earning capacity of the husband and the physical condition of the wife. Reed v. Reed, 182 Okla. 149, 77 P. 2d 30; Smyth v. Smyth, 198 Okla. 478, 179 P. 2d 920. In this case, the defendant earns approximately $350 a month, and certainly an allowance of alimony in the sum of $100 a month for ten months is not excessive.
The judgment of the trial court is affirmed, and the temporary alimony payments shall continue until the judgment in this case shall become final; but the judgment for permanent alimony shall be deemed satisfied when the payments for temporary alimony have all been made.
DAVISON, C.J., ARNOLD, V. C. J., and WELCH, CORN, GIBSON, and JOPINSON, JJ„ concur. LUTTRELL, J., dissents. O’NEAL, J., concurs in part and dissents in part.