Sparks v. Ross

70 A. 679, 74 N.J. Eq. 621, 1908 N.J. Ch. LEXIS 55

• Court: New Jersey Court of Chancery
• Decided: July 14, 1908
• Status: Published

Opinion

Leaming, V. C.

The only material new evidence received at the second trial was testimony to the effect that Jacob Loudenslager, who is alleged to have celebrated the marriage between Edmund B. Ross and Maria Moose December 4th, 3862, was at that time an ordained minister of the Methodist Episcopal church. I am unable to conclude that the added testimony was sufficient to remove the ease from the consideration of the jury. As heretofore stated the presumption of legality of the marriage of Eoss and Cavanaugh is a powerful presumption which cannot be disregarded. When Edmund B. Eoss married Mary Cavanaugh and resided with her as his wife for the remaining eighteen years of his lifetime and raised a family of children by her, in the same general section of this state in which the Moose woman resided, his conduct declared with -great' force and power that the impediment to his marriage, which is here claimed, did not exist. I am convinced that it was the province of the jury to weigh the force of these circumstances against the force of evidence which was offered in opposition. Even if it be assumed that Eoss was married, to Maria Moose in 1862 the court of errors and appeals declared, when the former case was there for review, that it “was not conclusive that that marriage was still subsisting in the year 1873, when, according to the evidence, Eoss contracted a marriage with Mary Cavanaugh.” TJpon that aspect of the case the evidence at the second trial was the same as presented at the former trial. The Moose woman at the former trial and at the recent trial testified that she had never been divorced, but as she remarried in 1870 her conduct either discredits her testimony or her morality. It was clearly a jury question whether the bonds of any former marriage still subsisted in 1873.

I will advise an order for a. new trial.