James v. James , 97 Colo. 413 ( 1935 )

Mr. Justice Holland

delivered the opinion of the court.

As plaintiff in the trial court, the defendant in error sought an annulment of his duly solemnized marriage to plaintiff in error, the defendant, by alleging in substance that defendant was, at the time of the marriage, the undivorced common-law wife of one Jack Davis. The answer denied this allegation, and the case was tried to the court, without a jury. Decree of annulment was entered in plaintiff’s favor and error is assigned. Only one question for consideration is discussed by plaintiff in error, that is, was there sufficient evidence before the court to warrant its conclusion that the existence of a common-law marriage was established?

Examination of the record discloses that plaintiff in error freely admitted that she was generally known by the name of Davis, and that she occupied the same living quarters with Davis. Several witnesses testified to the same effect, and that Davis and plaintiff in error represented themselves as man and wife; were introduced throughout an apartment house as such; that plaintiff in error, after her marriage to plaintiff herein, stated that she was divorced from Davis and had remarried. Numerous documentary exhibits warrant the irrefutable conclusion that the common-law relationship existed. All the facts and circumstances evidence a mutual consent that may be inferred from cohabitation and repute. Actual words of agreement and consent are not always necessary. Plaintiff in error testified that she intended to marry Davis at a future ceremony. The social and business conduct of plaintiff in error and Davis was recognized by all associates, as that of man and wife and such is inconsistent with her denial. In a matter of litigation, in which she was plaintiff, she sued in the name of Margaret Davis, and took the deposition of Jack Davis, who testified that he was her husband and that he lived with her at a given address. That deposition is an exhibit herein.

From sufficient evidence the court determined the facts in favor of defendant in error, and its finding will not be disturbed.

Judgment affirmed.

Mr. Chief Justice Butlee and Me. Justice Bouck concur.