Hickman v. Hickman , 126 Miss. 469 ( 1921 )

Smith, C. J.,

delivered the opinion of the court.

This is a proceeding in which the appellant seeks a divorce from the appellee, his wife, and the appeal is from a decree granting the appellee counsel fees and alimony pendente lite.

The ground on which the appellant seeks a reversal of the court below is that he and the appellee were never legally married, and that consequently he was under no legal duty to support her, from which it follows that she is not entitled to an allowance for counsel fees and alimony.

It appears from the evidence that in 1906 the appellee married Henderson, who shortly thereafter deserted her, and that in 1910, she, having been advised that Henderson was dead, married Rhone, who also shortly thereafter deserted her, and has not since been heard of. Afterwards she discovered that Henderson was still alive, and she returned to and lived with him until his death, which occurred prior to her marriage with the appellant in 1917. She admits that she was not divorced from Rhone.

The contention of the appellant is, and we will assume, but merely for the sake of the argument, that the appellee’s marriage with Rhone was legal, and that since Rhone is not shown to be dead he must be presumed to be living from which it will follow that the appellee’s marriage with the appellant is void. There is no merit in this contention, for the reason that the marriage of the appellant with the appellee must be presumed to be valid until the contrary is made to appear, and this can only be done by proof that Rhone is still alive. Hull v. Rawls, 27 Miss. 471; Spears v. Burton, 31 Miss. 457; Wilkie v. Collins, 48 Miss. 496; Railway Co. v. Beardsley, 79 Miss. 417, 30 So. 660; Knights of Pythias v. Tucker, 92 Miss. 501, 46 So. 51; Sullivan v. Knights of Pythias, 97 Miss. 218, 52 So. 360; Howard v. Kelly, 111 Miss. 285, 70 So. 391, Ann. Cas. 1918E, 1230; Aldridge V. Aldridge, 116 Miss. 385, 77 So. 150.

Affirmed.