Opinion
35890.
DECIDED JANUARY 11, 1956. REHEARING DENIED JANUARY 26, 1956.
Letters of administration. Before Judge Wood. Fulton Superior Court. June 29, 1955.
Spalding, Sibley, Troutman Kelley, Richard A. Denny, Jr., for plaintiff in error.
Ernest Bostich, contra.
The trial judge erred in granting a new trial for the reasons assigned.
DECIDED JANUARY 11, 1956 — REHEARING DENIED JANUARY 26, 1956.
Upon the death of R. S. McCormick, Sr., Mrs. Sophie McCormick, alleging herself to be his lawful surviving widow filed her application for permanent letters of administration in Fulton County Court of Ordinary on October 7, 1954. Mrs. Dora McCormick and her two children, R. S. McCormick, Jr., and Mrs. C. R. Schwab, filed a caveat to the a application for letters of administration. In the caveat it was alleged that Mrs. Dora McCormick was the wife, and R. S. McCormick, Jr., and Mrs. C. R. Schwab were the children of the deceased.
The court of ordinary found for the caveators. From the order of the court of ordinary sustaining the caveat, Sophie appealed to the Superior Court of Fulton County. On the trial of her appeal, a jury found for the caveators, and an order was entered in conformity therewith on March 22, 1955. Within the time allowed by law, Mrs. Sophie McCormick made a motion for a new trial, which as amended, was granted. To the order of the superior court granting a new trial the caveators excepted and the case is here for review.
Upon the trial of the case the evidence disclosed that Mrs. Dora McCormick married the deceased in 1920 and they were later divorced; that in 1942 she remarried the deceased and lived with him until about January, 1946, at which time they separated, and she had no knowledge of his whereabouts until after his death. The evidence further disclosed that about October, 1946, R. S. McCormick, the deceased, appeared in Atlanta and wooed Mrs. Sophie Rhoden until February 12, 1947; that on the last mentioned date he made an application to the Ordinary of Fulton County for license to marry Sophie Rhoden, and on the same day married her. Following their marriage, Mrs. Sophie McCormick and the deceased lived continuously in Fulton County until his death, except for a period of seven months in Fort Worth, Texas.
The litigants stipulated through their counsel that no divorce had been obtained by either Mrs. Dora McCormick or the deceased in Rockbridge County, Virgina, or Fort Worth, Tarrent County, Texas. There was uncontradicted testimony that no divorce between Mrs. Dora McCormick had been obtained in Fulton County.
The evidence shows conclusively that no divorce was had between Mrs. Dora McCormick and the deceased at any time since their second marriage with the exception of about ten months. This interval was from January of 1946 until about October of 1946 when the deceased arrived in Atlanta. The record discloses that the counsel stipulated certain laws of the States of Virginia, Nevada, Florida and Arkansas, for the purpose of showing the time required for obtaining a divorce in those States.
Although it is stated that these laws were stipulated, the brief of evidence does not show the details as to the time required to obtain a divorce in those States. There being no provision for a divorce in common law, (17 Am. Jur. 151), in the absence of any pleaded and proved particular statute of the above mentioned States the law of those States is presumed to be the same as Georgia's and the laws of this State will control the time required to establish residence for the purpose of obtaining a divorce. The residence requirements to obtain a divorce being twelve months during the ten months that the deceased's place of residence was not known, we cannot assume that he could have obtained a divorce in any one of the States mentioned in less time than required in this State. There being only ten months' time in which it was not conclusively shown that the deceased did not obtain a divorce the evidence demanded a finding that no such divorce had been obtained. The trial judge erred in granting a new trial for the reasons assigned.
Judgment reversed. Felton, C. J., and Nichols, J., concur.