Frank v. Frank

In Harper v. Fears, 168 Miss. 505, 151 So. 745, 747, 93 A.L.R. 341, where the first husband had been absent from the state and unheard of, after due inquiry, for more than seven years, the court said: "It seems to us that, when the period of absence has existed for seven years, the absent party not being heard from during that time, and the presumption being that he is dead, and the wife having acted upon such presumption in good faith and contracted another marriage, such marriage is legal. To hold otherwise in this case would be to convict five persons of adultery, and would bastardize three innocent children. . . . It seems to us that it would be sounder reasoning to hold that, if the absence had been for the statutory period, without the party having been heard from, and a marriage having been contracted on the strength of such prolonged absence, it should be protected and the contracting parties given a valid legal status."

This language is too plain to be brushed away by interpretation, and while it is true that the decision was placed also on another ground, the rule is firmly established that where under applicable facts there are two grounds upon either of which an appellate court may rest its decision, if it adopts both, the ruling on neither is obiter and each is the judgment of the court, and of equal validity with the other. United States v. Title, etc., Co., 265 U.S. 472, 44 S.Ct. 621, 68 L.Ed. 1110; Jones v. Mutual Creamery Co., 81 Utah 223, 17 P.2d 256, 85 A.L.R. 908; and see the numerous additional cases cited in 21 C.J.S., Courts, Sec. 190, pp. 315, 316, particularly under note 90. The language of this court in adopting the quoted text in Baldwin v. Anderson, 103 Miss. 462, on page 466, 60 So. 578, on page 580, is to the same effect.

Nor has Harper v. Fears been affected by what was later said in Watson v. Watson, 177 Miss. 767, 171 So. 701, for there the first husband had never been out of the state, nor had he concealed himself within it. The seven years' absence statute was, therefore, not there involved save the determination that under the facts it had no application to, or place in, the case.

What has been done by the majority in the present case is to overrule Harper v. Fears, and this, as we have repeatedly said, should not be done unless the overruled decision is manifestly erroneous, or is mischievous in operation. Moreover, appellee's second marriage in this case was subsequent to the decision in Harper v. Fears. Instead of that case being manifestly wrong, its holding would better serve the interest of the repose and security of the people of this state, considering that more than one race with their varying degrees of difference in culture and understanding dwell within our jurisdiction, and always will; and that instead of being mischievous in operation, it would prevent the bastardizing of innocent children, the disruption of long-established homes, and the tragic heartbreaks which would be the only fruits of the rule upon which the majority now insists.