Jackson v. Jackson

In July, 1873, the plaintiff and defendant intermarried at the city of Los Angeles, in this state. In May, 1890, the plaintiff commenced this action to have her marriage with defendant annulled, upon the ground that at the time it was contracted he had another wife living, and that such former marriage had never been dissolved by a decree of divorce or otherwise. The defendant, by his answer, admitted a prior marriage, but alleged that for five successive years immediately preceding his marriage with the plaintiff his former "wife had been absent from him, and was not known by him to be living, and that he believed she was dead.

Defendant also filed a cross-complaint in which he alleged that in the month of February, 1864, he was married to one Elizabeth Wharton, in Australia, and that they lived together as husband and wife for the period of one year, when they separated by mutual consent, and he, in 1865, removed thence to the state of California, where he had ever since resided; that for more than seven years prior to July, 1873, when he married the plaintiff, he had not heard from his former wife, although he made diligent inquiry and wrote to her several times to know of her…

In my opinion, the finding of the court, that the former wife of the defendant “left” him, is not sustained by the evidence. The defendant alleged in his answer that they “ separated by mutual consent, and this defendant, in the year 1865, removed to the state of California.” Upon the trial, he *464 testified to the same effect, saying: “I left in 1865. She left and went home to her father and mother. I came on to Sydney, and after a while came to San Francisco.”

His testimony that she “left,” not that she left him, and that he “ came on to San Francisco,” accords with the allegation in the answer that they separated by mutual consent. There is no other testimony in reference to this subject, except that of the former wife, which is to the effect that he left her. If they did separate by mutual consent, she was not “absent ” from him in the sense in which that term is used in subdivision 2 of section 61 of the Civil Code.

I do not, however, think that this finding of the court, or the construction given by the commissioner to the word “absent,” is material to the determination of the action. It may be conceded that the parties to this action entered into the contract of marriage…