Hemphill v. Hemphill

Atkinson, J.

In a suit for permanent and temporary alimony, where no action for divorce was pending, the defendant pleaded adultery of the wife. At an interlocutory hearing the judge awarded temporary alimony payable in installments. Subsequently, and before trial of the main case, the defendant amended his answer by setting up a prior undissolved marriage of the woman, and praying that the order granting temporary alimony be revoked and that the defendant be discharged. A rule nisi was issued; and in response thereto the plaintiff denied the former marriage, and alleged that there was no impediment to prevent her marriage to the defendant, and that she was his lawful wife. At an interlocutory hearing there was evidence of a former ceremonial marriage of the plaintiff when she was 12 years of age, and that she did not afterwards live with the man as husband and wife. The evidence was not entirely clear and uncontradicted as to the age of the plaintiff; and there was other evidence to the effect that she lived with the man “about three years” after the marriage. It was admitted by the plaintiff in open court that she and the man “were legally married and said marriage had not been dissolved.” After the introduction of evidence a judgment was rendered as follows: “Hearing on the application to revoke the order heretofore passed allowing temporary alimony and to deny plaintiff temporary alimony coming on this day to be heard, and it appearing that the plaintiff had, at the time she contracted marriage with the defendant, a living husband and that the said husband is still living, and it further appearing that said marriage has never been annulled by any judicial proceedings, and though upon the plaintiff’s claim that at the time the said marriage was contracted she was only twelve years of -age and had never ratified the marriage^ since arriving at the age of fourteen years, nevertheless it is considered, ordered, and adjudged that the order of court passed on Sept. 28, 1929, allowing temporary alimony, be and the same is hereby revoked; and it is further adjudged and ordered that plaintiff’s application for temporary alimony be and the same is hereby denied.” The plaintiff excepted.

The judgment was not erroneous on the ground, as contended, that it was contrary to the law and evidence.

Judgment affirmed.

All the Justices concur.