
    34878.
    STEWART v. PRICE.
    Decided January 14, 1954
    Rehearing denied February 5, 1954.
    
      
      Robert Carpenter, Ferrin Y. Mathews, for plaintiff in error.
    
      Fred Schrimper, James L. Alston, Alston, Sibley, Miller, Spann & Shackelford, contra.
   Sutton, C. J.

The evidence submitted by Emma Price showed that she and Robert Price were married by the Judge of the Municipal Court of Macon on October 1, 1934, under a license issued the same day by the Ordinary of Bibb County, and that the marriage license and certificate were duly recorded. The question presented is whether Robert Price was shown to have been incapable of entering into this marriage by virtue of his previous marriage to Annie P. Stewart. If the prior marriage was shown to have been valid and undissolved, the second marriage of Robert Price was void, and Emma Price would not be entitled to a year’s support as his widow.

Annie P. Stewart testified: that she was married to Robert Price by a minister at her mother’s house at 196 Butler Street in Atlanta, Georgia, on March 15, 1923; that a number of people were present, including Des Rea Thurman and Lula Moon; that they stood up and went through a ceremony, and the minister, who had a marriage license, pronounced them man and wife; that she did not know where the license was, for the preacher kept it; that the preacher who married them was introduced to her as a preacher, although she knew nothing else about him; that she and Robert Price lived together and slept together until 1929, when they separated, and she saw him frequently around town after that time; that she had never filed a divorce suit, but was served with a divorce suit filed by Robert Price; that she married Henry Stewart in 1935, thinking that Price had divorced her and knowing that Price had married Emma in 1934; and that both she and robert Price had lived in Fulton County from the time of their marriage until he died.

Des Rea Thurman testified that she was Robex*t Price’s sister and was present at the marriage ceremony at Lula Moon’s house on Mareh 15, 1923, when Robert Price married Annie; that Robert and Annie slept in one room of his parents’ house the first-night after they were married; that the ceremony was performed by a preacher who read Scripture and the marriage license; that she did not know the name of the minister officiating at the wedding and had not seen him since, but that he had a marriage license and said he was a minister; and that, when Robert married Annie, he had never been married before and was over twenty-one.

Lula Moon testified that she was Annie’s mother; that Annie and Robex't Price were married in her front room at 196 Butler Street in Atlanta, Georgia, on March 5, 1923, at which time Annie was seventeen and unmarried; that she did not know the man Robert brought to perform the ceremony, and had not seen him since, but that he said he was a preacher; that the room was full of people, the ceremony took place, and the preacher pronounced them man and wife; that, after the ceremony, Annie went under the name of Price; that Annie and Robert went to church together, and that Robert introduced Annie as his wife.

Addie Evans testified that she lived near Lula Moon in 1923 and was present when Annie and Robert Price were married on March 15, 1923; that she knew Robert and Annie when they were single and before they married; that she knew the preacher, Rev. Walker, who performed the ceremony; that Rev. Walker had a church on Bell Street, known as the Daughters of Zion; that she visited his church lots of times and knew him to be a preacher; that he preached for the dead at the undertaker’s, too; that he was dead now; that, at the ceremony, Rev. Walker had the license in his hand and read it and told them he pronounced them man and wife; that she knew Robert and Annie Price after they were man'ied and saw them around; that Robert introduced Annie as his wife, and that they lived together and went to church together.

One of the attorneys representing Annie P. Stewart testified that he had searched the records of Fulton County and had not found any record of Robert Price ever having obtained a divorce, although he had discovered a suit for divorce, filed by Robert Price against Annie Price, which had been dismissed by Price’s attorneys before a final decree of divorce was rendered; that he also had looked for a license for the marriage of Robert and Annie Price, but had not found it; and that he had found no other record of any divorce of any kind.

The evidence of the marriage between Robert Price and Annie P. Stewart was uncontroverted, and showed that they were both unmarried and of age when they were married in the presence of a number of witnesses by one purporting to be a minister, after which Robert and Annie lived together as husband and wife for some six years, and that neither Robert nor Annie had ever obtained a divorce in the county where they resided from the time of their marriage until Robert Price died, although Robert Price had filed a suit for divorce against Annie Price, but had dismissed the suit before obtaining a final decree. Not only did the direct and uncontroverted evidence show that an actual marriage contract was entered into between Robert and Annie Price on March 15, 1923, but there was additional evidence to the effect that, after their marriage, they lived together for six years, from 1923 to 1929, as man and wife; that she was introduced by Robert Price as his wife and went under the name of Price; and that Robert Price sought a divorce from her and obtained the first but not the final decree before dismissing his suit.

“By the common law and the law of this State, a mutual agreement to be husband and wife, by parties able to contract, followed by cohabitation, is recognied as a valid marriage. Askew v. Dupree, 30 Ga. 173; Clark v. Cassidy, 64 Ga. 662.” Dale v. State, 88 Ga. 552, 556 (15 S. E. 287); Chance v. Chance, 60 Ga. App. 889 (5 S. E. 2d 399); Lefkoff v. Sicro, 189 Ga. 554 (6 S. E. 2d 687, 133 A. L. R. 738); Code § 53-101.

This evidence of Robert Price’s valid and undissolved marriage with Annie P. Stewart demanded a finding that he did not have the legal capacity to marry Emma Price in 1934, and the presumption in favor of the validity of Emma Price’s subsequent ceremonial marriage with Robert Price no longer exists.

The verdict of the jury in favor of Emma Price was not authorized under the law and the evidence, and the court erred in denying the motion for a new trial. Inasmuch as the judgment of the court below must be reversed upon the general grounds of the motion for a new trial, and as the errors complained of in the special grounds are not likely to recur, the special grounds are not passed upon.

Judgment reversed.

Felton and Quillian, JJ., concur.  