Tysen v. Tysen

Plaintiff brings this action to have the marriage between himself and defendant annulled and declared void, upon the ground that at the time it was performed defendant then had, and ■still has, a husband living, to whom she had! been lawfully married. At the close of plaintiff’s case the following facts were established, either by proof or by admissions made in the pleadings or in open gourt:

The. defendant, then Fayette Lewis, lawfully married Joseph H. Benrimo at the borough of Manhattan, city and state of New York, on February 5, 1899, and thereafter they lived together as husband and wife in that city. On September 17, 1902, under the name of Fay Lewis Benrimo, she filed a bill of complaint in chancery against her husband for an absolute divorce in the circuit court for the county of Wayne, state of Michigan, which was based on charges of extreme cruelty. By order of such court, dated September 19, 1902, it was directed that the complaint in the action be served upon Benrimo by publication; such order being based upon an affidavit of the present defendant that Benrimo was not a resident of the state of Michigan, but resided at San Francisco, in the state of California. Thereafter, Benrimo not having appeared,-his default was taken, and on January 20, 1903, a decree of the circuit court was duly made, and filed on the following day, whereby the marriage between this defendant and Benrimo was dissolved. All of these proceedings were taken without Benrimo ever having been personally served with any papers in the action, and without his ever having appeared therein, either personally ■or by attorney. Thereafter, on September 19, 1903, at the city of Bridgeport, in the state of Connecticut, a marriage ceremony was performed between plaintiff and defendant, at which time they both were • residents of the state of New York.

The plaintiff had offered in evidence all the proceedings had in the Michigan action and the record of the marriage of Fayette Lewis and Joseph H. Benrimo. All these facts, thus established, made out a prima facie case. The decree of divorce obtained under the circumstances related was void. Haddock v. Haddock, 201 U. S. 562 , 26 Sup. Ct. 525 , 50 L. Ed. 867 ; Atherton v. Atherton, 155 N. Y. 129 , 49 N. E. 933 , 40 L. R. A. 291 , 63 Am. St. Rep. 650 ; Id., 181 U. S. 155 , 21 Sup. Ct. 544 , 45 L. Ed. 794 ; Olmsted v. Olmsted, 190 N. Y. 458 , 83 N. E. 569 , 123 Am. St. Rep. 585 ; Winston v. Winston, 165 N. Y. 555 , 59 N. E. 273 ; Matter of Kimball, 155 N. Y. 68 , 49 N. E. 331 ; O’Dea v. O’Dea, 101 N. Y. 23 , 4 N. E. 110 . Plaintiff had proved! the place of residence of Benrimo, which was prima facie his domicile, and was entitled to the presumption of continuance of a domicile once acquired. If the court entertained any doubt as to the facts, and was not disposed to give plaintiff the benefit of the favorable inferences to be drawn from the testimony, to which he was entitled, then plaintiff

The judgment appealed from must be reversed, and a new trial ordered, with costs to appellant to abide the. event. All concur.