Ward v. Ward

102 S.E. 35, 24 Ga. App. 695, 1920 Ga. App. LEXIS 462

• Court: Court of Appeals of Georgia
• Decided: January 27, 1920
• Docket: 10979
• Status: Published

Opinion

Broyles, C. J.

1. Whoever attacks the validity of a marriage has the burden of proving its invalidity, by clear, distinct, and positive proof. The presumption as to the validity of a marriage can only be negatived by disproving every reasonable possibility. Murchison v. Green, 128 Ga. 339, 342 (57 S. E. 709, 11 L. R. A. (N. S.) 702); 26 Cyc. 877 (2).

2. Where a second marriage by a person is established and it is shown that he or she had previously married another person who was living at the time of the second marriage, the presumption is that the first marriage had been dissolved by a decree of divorce, and the burden is upon the person attacking the validity of the second marriage to show that a divorce had not been granted. 26 Cyc. 880 (4), note 37, and authorities there cited.

3. Under the above rulings and the facts of the instant case, the court did not err in directing a verdict for the caveatrix; and the error in allowing, over the objections of the other party, oral testimony to the effect that the caveatrix had secured a divorce from her first husband was harmless and does not require a new trial. If this illegal evidence had been eliminated, a finding in favor of thq validity of the second marriage of the caveatrix would still have been demanded.

Judgment affirmed.

Luke and Bloodworth, JJ., concur.

Application, for administration—appeal, from Floyd superior court—Judge Wright. August 1, 1919.

M: B. Eubanks, for plaintiff in error. Maddox & Boyle, contra.