Opinion
No. 18,003.
Filed May 1, 1950.
1. MARRIAGE — Common-Law Marriage — Evidence — Weight and Sufficiency — Sufficient To Establish Common-Law Marriage. — In an ejectment action against one claiming to be the common-law husband of plaintiffs' vendor, the evidence was sufficient to establish that a common-law marriage relationship had existed between the defendant and the vendor before the latter's death. p. 281.
2. MARRIAGE — Common-Law Marriage — Evidence — Weight and Sufficiency — Evidence of Desire To Get Married — Refers to Marriage Ceremony. — In an ejectment action against one claiming to be the common-law husband of plaintiffs' vendor, where the evidence showed that the defendant and the vendor had lived together openly and notoriously as man and wife, that the latter desired to get married, but that the husband did not, the trial court was justified in concluding that a common-law marriage existed and that the "desire to get married" referred to a marriage ceremony rather than the entering into the marriage relationship. p. 282.
3. MARRIAGE — Common-Law Marriage — Validity — Desire To Have Ceremony Performed Immaterial. — Where two parties have entered into a common-law marriage validly established, the subsequent desire of the wife to have a marriage ceremony performed, and the husband's unwillingness to do so, could not dissolve the marriage. p. 282.
4. APPEAL — Presentation in Lower Court of Grounds for Review — Objection to Testimony — Objection to Responsive Answer — No Question Presented. — Where the appellants objected to testimony of a witness on the theory that the witness was not competent to testify on the subject, but the testimony was responsive to the question propounded to the witness and the objection was not made until after the question was answered, no question as to the trial court's ruling in allowing the testimony was presented on appeal. p. 282.
5. EVIDENCE — Hearsay Evidence — Name of Obligor on Bills. — Hospital, doctor, nursing, fuel oil and other bills, some of which were made out to Mrs. Flora Glass or to Mrs. O.T. Glass, were hearsay evidence on the issue of whether or not the named party was the common-law wife of Ora T. Glass. p. 283.
6. APPEAL — Harmless Error — Admission of Hearsay Evidence — Non-Jury Trial — Admission Not Harmful. — Admission of hearsay evidence was not harmful to appellant where it was not objected to on that ground, its relative importance was slight, the case was tried by the court without the intervention of a jury and the decision did not depend on this evidence for support. p. 283.
7. APPEAL — Harmless Error — Action — Ejectment — Error in Conclusion That Defendant Owned Realty — Deed to Plaintiffs Void — Plaintiffs Not Harmed. — In an ejectment action where the defense was that the deed to plaintiffs of the realty in question was void because it was executed by the common-law wife of defendant without the signature of the latter, any error committed by the trial court in its conclusion that the defendant was the owner of the real estate was not harmful to plaintiffs because the court also found that plaintiffs' deed was void and that they had no interest in the property. p. 283.
8. APPEAL — Harmless Error — Non-Prejudicial Error. — Any error unaccompanied by prejudice is not grounds for reversal. p. 283.
From the Allen Superior Court, Room No. 2, George H. Leonard, Judge.
Action by Rujetta Romey, individually and as Guardian of Phyllis Romey, a minor, and Phyllis Romey against Ora T. Glass to evict defendant from a residence property, in which action defendant filed a cross-complaint alleging himself to be the owner of the property. From a judgment for defendant and cross-complainant, plaintiffs appeal.
Affirmed. By the court in banc.
Guy Stookey, W.O. Hughes and James P. Murphy, all of Fort Wayne, for appellants.
Louis H. Dunten, J. Robert McDonald; and Dunten Arnold, all of Fort Wayne, for appellee.
Appellants brought suit to evict appellee from a residence property. The appellee answered by way of denial and filed a cross-complaint alleging himself to be the owner of the real estate.
The special findings of fact disclose that the appellee and one Flora A. Lanciaux entered into and consummated a common law marriage "about sixteen years ago," and that the appellee and the decedent thereafter lived together in the relationship of husband and wife continuously to the time of her death. She died intestate January 1, 1948. On May 26, 1944, the decedent executed a deed to the appellants which purported to convey the property to them. The deed was not signed by the appellee, who, according to the finding, was the husband of the decedent on the date of its execution. See Burns' Rev. Stat., § 38-102.
The court concluded that the deed was void; that appellants have no interest in the property; that appellee is the owner thereof; and that his title thereto should be quieted as against the appellants. Judgment was entered accordingly.
While the evidence is conflicting, that most favorable to the appellee is so supportive of all the essentials of a common law marriage, as defined by the decisions of this and the 1. Supreme Court, that we need notice and dispose of but one of appellants' contentions concerning its sufficiency. It showed, among many other things, that the appellee introduced the decedent as his wife and he lived with and treated her as such. She called herself Mrs. Glass; told others they were married; and was recognized and known as the appellee's wife in the church they attended and in the community in which they lived. The appellee testified that in the fall of 1932 when both he and the decedent were competent to enter into the marriage relationship, and before which time there had been no illicit relationship between them, they agreed to a common law marriage; they agreed to live together and be called husband and wife; and thereupon began to live and cohabit together as such and continued to do so openly and notoriously for 16 years. He also testified, however, that during much of the time they so lived together the decedent occasionally talked about getting married; she wanted to get married but he wasn't ready to do so; he kept putting her off; he wasn't ready yet; she wanted to get married and he didn't. He further testified he didn't think they needed to get married; he took the position he was a married man from the time they started to live and cohabit together.
From a reading of the record it seems apparent to us that the appellee was here referring to a marriage ceremony, rather than a marriage; that he believed a ceremonial marriage was 2, 3. unnecessary, and he did not wish to have a ceremony performed. Certainly the trial court was justified in drawing that conclusion and he apparently did so, and we are not at liberty to draw a different conclusion. Her later desire to have a ceremony performed, and his unwillingness to do so, could not dissolve a marriage once validly established. Norrell v. Norrell (1942), 220 Ind. 398, 44 N.E.2d 97.
The appellants assert the court erred in permitting the appellee to testify over appellants' objection that the decedent "was called my wife" on the theory that he was not 4. competent to testify on that subject. The answer was responsive to the question and the objection was not made until after the question was answered. Thus no question is presented. Storms v. Lemon (1893), 7 Ind. App. 435, 34 N.E. 644; Western Southern Life Insurance Co. v. Lottes (1946), 116 Ind. App. 559, 63 N.E.2d 146, 64 N.E.2d 405, 64 N.E.2d 805; Edmondsen, Rec. v. Friedell (1928), 200 Ind. 298, 163 N.E. 89; The Pennsylvania Co. v. Witte (1896), 15 Ind. App. 583, 43 N.E. 319, 44 N.E. 377.
The court admitted in evidence many hospital, doctor and nursing bills, and bills for fuel oil and other supplies, some of which were made out to Mrs. Flora Glass or to Mrs. O.T. 5, 6. Glass and some of which were made out to the appellee. This evidence was hearsay. State v. Schaller (1942), 111 Ind. App. 128, 40 N.E.2d 976; Speck v. Kramer (1926), 84 Ind. App. 646, 151 N.E. 37; 31 C.J.S., Evidence, § 194, p. 930. However, it was not objected to on that ground, and its relative importance was slight. The case was tried by the court without the intervention of a jury and the decision does not depend on this evidence for its support. On the whole record before us we think it could not have been harmful to the appellants. Shira v. State, ex rel. (1918), 187 Ind. 441, 119 N.E. 833.
The appellants assert error in the court's conclusion that the appellee is the owner of the real estate because there is no finding, nor any evidence from which it could be found, 7, 8. that the decedent did or did not leave any child or parent surviving her. Only if none such survived her could the appellee become the sole owner of the real estate by inheritance. Burns' 1933, § 6-2324.
But the court also concluded and adjudged that the deed was void and the appellants had no interest in or title to the real estate. It therefore follows that neither the conclusion complained of nor the judgment based thereon were harmful to the appellants, and error in that regard cannot avail them. Error, unaccompanied by prejudice, is not ground for reversal. Shea v. Peoples Coal Cement Co. (1931), 93 Ind. App. 302, 161 N.E. 849; 5 C.J.S., Appeal and Error, § 1676, p. 809; 3 Am. Jur., Appeal and Error, § 1003, p. 555.
Judgment affirmed.
NOTE. — Reported in 91 N.E.2d 850.