
    York v. York.
    Divorce ¡ alimony pendente lite. To warrant an order granting temporary alimony, tke fact of marriage between tbe parties must be admitted or proved.
    
      Appeal from Marshall District Oov/rt.
    
    Thursday, July 25.
    Action for divorce. Motion for temporary alimony sustained._ Defendant appeals. Tbe necessary facts appear in tbe opinion.
    
      Smderson Bros, and Merrimcm for tbe appellant.
    
      Boccrdma/n dc Brown and With/row & Wright for tbe appellee.
   Day, J.

Tbe answer of defendant denies bis marriage to plaintiff. In support of bis motion, plaintiff presented the affidavits of George Glick, James L. Williams and of herfather, S. C. Barnbart. George Glick states that in the spring of 1870, J. B. York introduced to bim Eliza A. Barnbart, and afterward said sbe was a good girl and a good housekeeper, and that be bad a good notion to marry her; and that afterward, in Marshalltown, be introduced plaintiff as bis wife,'and said that be and Eliza bad just got married. James S. Williams states that in May or June, 1870, in Marshalltown, defendant introduced to bim plaintiff as bis wife. S. C. Barnbart states that on the 3d May, 1870, the plaintiff, bis daughter, left bis bouse in State Centre township, in company with defendant, to be married to bim in Marshalltown; that they returned the next day and claimed to have been married; and that they cohabited together, at defendant’s bouse, from that time to November 3, 1870; and that be bad frequently heard defendant introduce, to persons visiting him, the plaintiff as bis wife.

The defendant, resisting tbe motion, filed tbe affidavit of himself, and those of James W. Bailey and J. S. Ewing. James W. Bailey states that tbe reputation of plaintiff for chastity and morality, where she formerly resided, in Illinois, is not good. That of bis own knowledge she is a woman of loose morals, and that upon two occasions be saw her having criminal intercourse with men.

J. S. Ewing states that in June, 1870, plaintiff came into bis store, in State Center, the defendant remaining outside, somewhat under the influence of liquor; that plaintiff made some light remark about defendant being intoxicated ; and that in reply to bis question what she married such'' a man for ? ” She replied thank God! I am not married to bim.” the defendant, in bis affidavit, states that in April, 1870, be frequently bad sexual intercourse with plaintiff, and that about May 3, 1870, be and plaintiff visited Marshalltown and registered at the Willard House, as “J. B. York” and “ Eliza, housekeeper; ” and that, at that time, by frequent and earnest solicitations of plaintiff, be represented to eezdain persons that she was bis wife, for the propose of concealing and eovez’ing up the crime of lewdness; that while they were guests at said hotel, plaintiff requested that be would represent to her parents that they wez’e married in Marshalltown, and stated that on their return she wozzld become bis housekeeper at a stipulated sum per week; that be at first z*efused to enter into the arrangement, but finally, upon her earnest solicitation, with a full and complete understanding on her part that the same was untrue, be did, at various times and to divers persons, for the purpose afoi’esaid, represent that plaintiff was bis wife; that they were never joined in marriage, either with or without license and ceremony; that there never was a contract of marriage between them, nor any understanding or agreement of such a character.

That plaintiff continued to cohabit with defendant till November, 1870, when she quit his employment, and commenced a prosecution against him for seduction, conspiring'with her parents to extort money from him, etc.

The facts disclosed, in our opinion, do not warrant the order granting temporary alimony. Alimony is a right that results from the marital relation, and the fact of marriage between the parties must he admitted or proved before there can be a decree for it, even pendente lite. Bishop on Mar. and Div. (3d ed.) § 570, and cases cited.

Here the existence of the marriage is unequivocally denied. It is sought to be supported only by the fact of the cohabitation of the parties, and that defendant, upon several occasions, introduced plaintiff as his wife. In opposition to this it is shown, by the affidavit of Ewing, that plaintiff stated they were not married, and the affidavit of defendant explains the circumstances of the introduction of plaintiff as his wife, and clearly shows that the cohabitation was meretricious. The statement of this affidavit the plaintiff does not deny. If it be true, as claimed, that they were married in Marshalltown on the 3d of May, 1870, the plaintiff could have no difficulty in clearly establishing the fact. We concede that cohabitation alone may make out a prima facie case of marriage, but when it is shown that the parties have lewdly cohabited, the presumption of marriage is rebutted.

The case of Smith v. Smith, 1 Edw. Ch. 255, cited by appellee, is a very brief one, and simply decides that a denial of marriage, without a denial of cohabitation, is no answer to the wife’s application for alimony. In that case the application for alimony was submitted upon the petition and answer alone. In this case the affidavits show that no marriage in fact occurred, and that none could be presumed from the nature of the cohabitation.

The case of Hereforth v. Hereforth, 2 Abb. Pr. Rep., N. S., 489, is not in harmony with our views herein expressed; but that is a nisi prius decision, and is in conflict with what we regard the better doctrine.

The judgment of the district court is

"Reversed.  