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but expressly objected to before him. An appeal from such a judgment in the circuit or chancery court could not confer power upon the Supreme Court to dispose of the merits of the controversy; nor could the transfer of the cause to this court by the writ of certiorari have that effect. All that this court ought to do, or could do, in such a case, would be, in the exercise of its supervisory power over all inferior tribunals, to reverse and remand for a lawful trial. Having discovered this first and cardinal error,

Dimes v. Grand Junction Canal Co., 16 Eng. -where that incompetency was not waived, L. & Eq. 63; Washington Ins. Co. v. Price, 1 Hopk. Ch. (N. Y.) 1. And, generally, if the facts are known to the party recusing, he is bound to make his objection before issue joined, and before the trial is commenced; otherwise he will be deemed to have waived the objection in cases where the statute does not make the proceedings void. Moses v. Julian, 45 N. H. 52, 84 Am. Dec. 114; Shropshire v. State, 7 Eng. (12 Ark.) 190. The decisions of this court first above cited are in accord with these conclusions. If the objection be raised of record, and the court un-it will go no further. It was so held in dertake to proceed notwithstanding, the judgment might be held void under these principles, as was done in Reams v. Kearns. But if no objection be made, and the court is permitted to go to a trial of the case on the merits, the judgment is clearly not void on its face, and something more than the mere existence of the fact on which the incompetency rests should be required to au-jected to at the time. As to that case it is thorize a resort to another tribunal. The terms of the statute are sufficiently met by holding the proceedings invalid if the objections be made, unless the incompetency be waived in the mode prescribed by the statute. In this view, the judgment would be voidable, not void, in all cases in which the record failed to show the preliminary objection." In the present case, as we have already noted, due objection was made in the trial court.

It was held in Wroe v. Greer, 2 Swan, 172, that where a case was tried before a justice of the peace, who was incompetent, and then appealed to the circuit court, the trial might proceed, regardless of the incompetency of the justice of the peace, because, it was said, the appeal vacated his judgment, and that the trial in the circuit court was de novo. We have no case in this state that follows Wroe v. Greer on this special point. Under all of the other cases the rule appears to have been to reverse and remand. In Holmes v. Eason, supra, such is stated to have been the rule at common law, citing Dimes v. Grand Junction Canal Co., 16 Eng. L. & Eq. 63. This case is also cited with approval in Harrison v. Wisdom, 7 Heisk. 99, 111. And see Arnold v. Embree, Peck, 134; Witt v. Russey, 10 Humph. 208, 51 Am. Dec. 701, Mason v. Westmoreland, 1 Head, 555, and Reams v. Kearns, supra, in which the practice seems to have been used, or stated as the proper course, without discussion doubt. It is true that all of these cases, except Reams v. Kearns, arose on a want of jurisdiction of the subject-matter in the justice of the peace; the amounts sued for being beyond that jurisdiction, though within that of the circuit court. The principle is the same, however, as where a judgment has been rendered by a judge in the lower court who was personally incompetent-that is,

or

Reams v. Kearns. Parties have the right to have their cases tried before the regularly constituted tribunals of the state, and neither the judges of this court, nor the judges of any inferior courts, can deprive them of it. A court is not lawfully constituted, as to the special case, if the judge is incompetent to try it, and his incompetency is ob

the same as no court if the judge be incompetent. It is not only the right of a party under the distribution of judiciary powers directed by the Constitution, and ascertained and formulated by legislative acts, to have his case first tried in the lower court; but it is important that he should have the benefit of those proceedings, not only for the aid they may furnish on a subsequent trial in this court, or the Court of Civil Appeals, but also because of the possibility of a termination of the controversy in that court without the expense and delay of a trial in an appellate court. A denial of such preliminary trial is a deprivation of the right guaranteed to every citizen to have his case tried according to due course of law, and is a violation of article 1, § 17, of the Constitution, supra. There is one case, however, Bolling v. Anderson, 4 Baxt. 550, where, among many other objections taken to the decree of the chancellor, one was that he was incompetent to try the case. Without discussing the question of practice, the court, after considering all the points, reversed the decree and discharged the garnishment. It was shown in that case that the judgment nisi was pronounced against one Turley, as garnishee, by Chancellor Harrison, who, it appeared on the record, was incompetent. The court said that the decree must fail on that ground, and also on the ground that no notice of the garnishment had been served on the garnishee, Turley; that sci. fa. was ordered issued returnable to the first Monday in December, but was made returnable to the first Monday in February. On these grounds the court considered the case and reversed the decree. The question of practice was not discussed.

The case of Wroe v. Greer was decided upon two points: First, that the incompetency of the justice of the peace was waived, be

before him; secondly, in the alternative, that, | ing whether there were any errors commiteven if it had not been waived, it would ted. cease to have any application to the case, because the appeal to the circuit court had the effect to supersede the judgment of the justice of the peace, and the case was tried de novo upon its merits before a competent court. The court said it was the same as if the case had been originally instituted, as it might have been, in the circuit court. "The question" (said the court) "whether the competency of the justice had been waived while the case was before him had ceased to be of any utility or effect in the case, now that it was no longer before him, and was again to be tried upon its original facts in the same manner as if there had been no former trial." It is also true that in disbar

While a trial de novo in this court on appeal from a decree of the chancery court must be had without giving any weight whatever to the findings of the trial judge, yet there are various orders which can and do very materially limit at times the scope of the relief that can be granted by this court. The same is true, of course, on appeals of the same nature from a circuit or criminal court, with the added disadvantage that the disqualified judge has to pass upon the report of the evidence contained in the bill of exceptions, and authenticate that instrument, and make it a part of that record of the cause. On the contrary, on an appeal from a justice of the peace's judgment the case is absolutely open, on new evidence, just as if there had never been a trial before him. We are of the opinion, therefore, that Wroe v. Greer must stand upon its own facts, and that it is not an authority for such a case as we have before us.

ment proceedings, on appeal to this court,
the case is tried de novo. Ralph Davis v.
State, 92 Tenn. 634, 23 S. W. 59. So far the
analogy between the two cases holds. But it
fails in one essential point. After an appeal
to the circuit court from a judgment render-
ed by a justice of the peace, the witnesses
are introduced in the circuit court just as
if there never had been any trial before the
justice. The case comes before the circuit
court simply upon the warrant, and the re-
turn of the officer showing service. In the
case now under examination, however, the
evidence was taken in open court, and ob-
jections were offered to testimony, and rul-
ings thereon made by the disqualified judge
--all preserved by a bill of exceptions. In
other words, he presided at the trial, which
we are to review for the purpose of discover- on by him.

It results that we affirm the judgment of the Court of Civil Appeals in remanding the case for new trial before a competent judge. We do not, however, agree with that court in all the reasons which it gave for its decision, or further than that, on disqualification of the judge appearing, the case should be reversed and remanded. We do not express any opinion whatever on the facts of the case, deeming it improper to do so, inasmuch as the facts must come before a trial judge, and be heard and first passed

NELSON et al. v. JONES et al. (Supreme Court of Missouri. Dec. 14, 1912.) 1. JUDGMENT (8 948*)-PLEADING-RES JU

DICATA.

In the absence of a plea, the question of

res judicata need not be considered.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1787-1794; Dec. Dig. § 948.*]

2. EVIDENCE (§ 67*)-PRESUMPTIONS-CONTINUANCE OF STATUS.

A status once established is presumed to continue until the contrary is shown by evidence.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 88 87, 88, 103; Dec. Dig. § 67.*]

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[Ed. Note. For other cases, see Evidence,

IMACY.

Cent. Dig. §8 2432-2435; Dec. Dig. § 586.*]
11. BASTards (§ 6*)-PRESUMPTION OF LEGIT-
At common law a child was considered le-
gitimate if the husband was shown to have been
within the four seas within a certain period,
and was capable of issue, and at the present
time a child will not be adjudged illegitimate
unless it cannot be prevented.

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 9, 10; Dec. Dig. § 6.*]

3. MARRIAGE (§ 40*)-PRESUMPTION OF CON-12. BASTARDS (§ 1*)-PRESUMPTION OF LEGITTINUANCE-MARRIAGE.

A marriage once shown to exist is, as a rule, presumed to continue until the contrary is shown.

[Ed. Note. For other cases, see Marriage, Cent. Dig. $ 58-69, 79; Dec. Dig. § 40.*] 4. EVIDENCE (§ 60*)-PRESUMPTIONS.

All things are presumed in favor of life, liberty, and innocence.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 81; Dec. Dig. § 60.*]

5. BASTARDS (§ 3*)-PRESUMPTION.

Since a wrong is never presumed in absence of proof to the contrary, it is presumed that a child is legitimate.

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*]

6. BASTARDS (§ 3*)-CONFLICTING PRESUMP

TIONS.

The presumption that a marriage once established continues must give way to the presumption in favor of the legitimacy of children born to one of the parties while thereafter living with another person in such manner as to constitute a common-law marriage.

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 4, 5; Dec. Dig. § 3.*]

7. MARRIAGE (8 50*) - COMMON-LAW MARRIAGE EVIDENCE.

Evidence in an action to try title held to show a common-law marriage between the per

sons named.

[Ed. Note.-For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. § 50.*]

8. MARRIAGE (§ 50*)-COMMON-LAW MARRIAGE -PROOF.

Strong proof is necessary to establish a common-law marriage.

[Ed. Note.-For other cases, see Marriage, Cent. Dig. §§ 79-89; Dec. Dig. § 50.*]

9. EVIDENCE (§ 159*)-BEST EVIDENCE.

IMACY-DECREED"-"DEEMED."

The father of the child in question by his alleged second marriage had previously married, and he and his wife parted and lived apart. It was not shown that either of them procured a divorce, but he afterwards ran away with another woman, and they subsequently came back to the neighborhood where his former wife resided and to her knowledge lived together openly and notoriously as man and wife and discharged all of the duties of that relation toward each other until he died. Rev. St. 1909, § 342, provides that the issue of all marriages "decreed null in law or dissolved by divorce shall be legitimate." Held, that the word "decreed" was substantially equivalent to the word "deemed," which was used in the statute as it formerly stood, and, under the statute as strued, the children begotten by the husband of his alleged second wife were legitimate.

con

[Ed. Note. For other cases, see Bastards, Cent. Dig. §§ 1-3; Dec. Dig. § 1.* For other definitions, see Words and Phrases, vol. 2, pp. 1905-1908, 1924-1926.]

Graves and Woodson, JJ., dissenting.

In Banc. Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by Addie Nelson and another against Talitha Jones and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded for decree as di

rected.

Ward & Collins, of Caruthersville, for appellants. Arthur L. Oliver, of Caruthersville, for respondents.

LAMM, J. In November, 1906, plaintiffs sued to try and to determine title to 77.15 acres of land in Pemiscot county, described

While the law requires the best proof the by metes and bounds in the petition, and case is susceptible of, it does not require im-lying on the state line. From a judgment possibilities such as the production of records for plaintiffs, defendants appeal. of the courts of another state, and, where the nonexistence of a divorce decree in another state was in issue, the best evidence of its nonexistence would be the evidence of the custodian of the divorce records of the courts of such state or other person familiar with such records, and evidence by a judge of the county court, justice of the peace, and notary public of a county in Missouri that he searched the records of a certain county in another state and found no divorce decree was not the best evidence of the fact that no divorce had been

granted in that county.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 471, 474; Dec. Dig. § 159.*]

John Jones was the common source of title. His first wife was Emma Perry. By her he had a daughter, Addie, now intermarried with Nelson, her coplaintiff. Some two years after the birth of Addie, John and Emma separated, and Emma (while John was yet alive) married Luther Brown, a minister of the gospel. Afterward she died. John (it is claimed by defendants and denied by plaintiffs) married Lizzie C. Harrington during the life of his first spouse. Afterwards John was killed. Defendants

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Talitha, Josie, and George Jones are his | gether," and, though Harrington moved infant children by her. After John's death, Lizzie C. intermarried with her codefendant, William Chism. All parties live in Arkansas.

about a good deal, yet the young women knew each other pretty well. Whether it was John or Emma at fault in the separation does not appear. The best we can make out is that their ways parted about 1891. They never lived together as husband and wife thereafter, or in any wise recognized any conjugal duty to each other. She returned to her father's house with her baby, and John raised a crop and stayed in the neighborhood with his acquaintances for a time variously estimated at from four to eight months, when, to use the phrase of the witnesses, he "ran away" with Lizzie Harrington.

The main issues threshed out below were divorce, marriage, and bastardy. The pleadings, proofs, and admissions are such that (unless Addie is estopped to claim an exclusive title) she inherits the land if she be the only legitimate child and sole heir of John Jones. Contra, if the infant defendants are his legitimate children, then Addie inherits only an undivided one-fourth and they the remaining three-fourths. So, if Lizzie C. was lawfully married to John Jones, she is endowed. If, however, she was Miss Harrington's sister "ran away" at not, then she is not. There was another the same time with one Reece. They one issue, viz.: It is alleged in the answer that and all floated in a dugout or canoe from Addie and the defendants (as joint plain- North Chickasawba to a place or creek tiffs) brought a suit against one Briggance called "Marked Tree," there took a train (the source or character of Briggance's title to West Memphis, there crossed the Missisdoes not appear) to determine title in 1906 to the same land in the Pemiscot circuit court; that such proceeding ripened into a decree vesting the title out of Briggance and into them; and that defendants, at the instance and by the procurement and a man officiating who "looked like" a minacquiescence of plaintiff Addie, were put to such efforts, trouble, outlays, and expense in and about that proceeding as raised an estoppel, wherefrom they plead estoppel in aid of their title. By replication Addie admits such Briggance suit, but pleads her minority by way of avoiding the force of the estoppel.

sippi river, and went on to Bolivar county in the state of Mississippi. On the way to Bolivar county, they stopped at a way station, according to Lizzie's account, and both these runaway couples there hastily married;

ister, and there is faint evidence of a "license." Reece did not testify, and his whereabouts are unknown. Lizzie's sister did not testify. She seems to have afterwards married a man named Scallion, but, whether she is living or dead, Lizzie said she did not know. After several months Jones and she come back to Yarbro, Mississippi county, The cause was tried to the court, and, Ark., hard by North Chickasawba, and there, though instructions were asked for defend- all the testimony shows, they lived together ants, yet the nature of the relief sought, and held each other out as man and wife together with the issue of estoppel raised in the face of all men and to the knowledge by the answer and the form of the judg- of their old acquaintances and kinsfolk. She ment, put the case, we think, in equity. We was thenceforward known as Mrs. Jones. Not have been inclined to view suits to deter- far away at the time lived Emma, the first mine and decree title as of equitable cogni- wife, and the testimony tends to show she zance except where the issues are so framed knew they were consorting publicly together by the pleadings as to make the proceed- as man and wife and holding themselves ing a lawsuit. There is nothing in the plead- out as such. After one or two years they ings in this case showing either party en- moved a little ways north just over the state titled to a jury. In this view of it, we shall line into Missouri, about 10 miles from Yarreview the facts and determine the case on bro and North Chickasawba, and settled on our own estimate of them, giving to the the farm in question which Jones then court below the proper advantage of post- bought. While at Yarbro he got his child, tion in weighing oral testimony. The facts Addie, and kept her in his family. While are these: Mississippi county, Ark., is just not quite clear, yet we gather, when Jones across the line from Pemiscot county, Mo. made that move, he took Addie with him About 1886 there lived on the North Chicka- and kept her there at his new home with sawba in said Mississippi county John Jones his putative new wife until he was killed and Emma Perry. About 1886 or 1887 they on June 2, 1896. At their new home in were married by a justice of the peace. Pemiscot county, as in their old in MissisTheir families lived not a great ways apart, sippi county, Ark., John Jones and Lizzie and both the Perrys and the Joneses were lived continuously, openly, and habitually as farmers. After his marriage John cropped man and wife, the neighborhood recognized in the neighborhood for four or five years. and treated them as such, and this recogAs said, some two years after Addie was nized and reputed relation continued down, born John and Emma separated. There as said, to the day of his death. There is lived not far away one Harrington. Har- no countervailing testimony on this phase rington had a daughter, Lizzie C. Emma of the case. In the meantime there was Jones and Lizzie Harrington were "girls to- born to the twain three children, the infant

defendants, and these three with Addie, su-| guardian and curator against Briggance to pervised and mothered by Lizzie C., made reinvest themselves with title. The Briggance suit was determined on the 8th of August, 1906. The record shows that on that day it was adjudged in that suit that "the plaintiffs [the four children] are the owners of the property, and the defendants have no interest in the property." When Mr. Ballard, one of plaintiffs' counsel in this suit, and plaintiffs' counsel in the Briggance suit, was on the stand, a question was asked him, on cross-examination, intended to elicit facts creating an estoppel. On objection, evidence of that character was ruled out. That ruling was put upon the foot that Addie Nelson was a minor at the time. We do not read the briefs of appellants' counsel as predicating error of that ruling, or that they claim title through the judgment in the Briggance suit. Indeed, counsel treat the whole matter as of little or no appellate value.

up his household. During all this time, as said, his first wife lived a few miles away in Arkansas. While the testimony on behalf of plaintiff leaves the matter in doubt, yet it sufficiently appears from other testimony that the first wife intermarried with Luther Brown, a preacher, during the lifetime of John Jones, as said, and had a child by him. Straightway on the death of John Jones the first wife claimed Addie and took her away. There was no record of a divorce by either John or Emma from the other introduced in evidence. The records of Mississippi county, Ark., were searched for such record by Mr. Ballard, one of plaintiffs' attorneys, but he found no such record. Lizzie testified that before she ran away with Jones, when he asked her to marry him, he told her he had a divorce; that she believed him without making further inquiry, and married him in good faith as a single man. She lived some distance from Osceola, the county seat (30 miles, with no railroad), and

had never been there. We take it the road there at that time lay through swamps and was not an inviting line of travel. She explained her elopement by saying that her

father objected to Jones as a suitor for her hand because he (Jones) was a "widower" and "kind of rough." On behalf of plaintiff, the brother of the first wife was allowed to testify, over the objections of defendants' counsel, that Emma Jones was never divorced from John, and that John Jones was never divorced from Emma. He testified further that, if they had been divorced, he would have known of it "by the report." He was allowed to testify that the community of North Chickasawba, his home region, would have known of such divorce by "neighborhood rumor," if there had been one; also that once when he called at the house of John Jones in 1895 John and Lizzie "got in a racket" and he heard John say to her they were not married. This she denied. Elsewhere in his testimony he said Jones told him so three or four times. One Hicks was also allowed to testify, over objection, that Reece told him on the return from Bolivar county that "they were not married."

At the time of the trial, the land was not occupied. Most of it was not cleared. The little bit that had been under the plow had again run wild, and we infer the total value was small. Questions hinging on challenges to some of plaintiffs' testimony and adverse rulings below are in the case, and, if it is necessary to determine those questions, the facts will appear further along, as well as any other facts vital to the justice of the

case.

As to the issue of estoppel, it is out of the case on appeal. When Mrs. Nelson was on the stand, she testified she became of age October 18, 1906. This was after all four

[1] There is no plea of res adjudicata in the case, and we need not look into that matter or estoppel. Accordingly those questions are put to one side.

A foreword to the opinion may not be and innocent children, and in the presence amiss, viz.: In the presence of blameless of a situation made sordid and squalid by ignorance and poverty, all of which appear in the lines and between the lines of this record, the facts (read through judicial blushes) bespeak judicial charity and mercy to the very verge of the law to work out a just result. In our opinion the judgment is wrong and should be reversed. This because:

[2] (a) of divorce, marriage, and bastardy. There is a presumption that, when a status is once established, it is generally presumed to continue until the contrary is made manifest by the proof. That sensible presumption (subject to exceptions) is of everyday use in the affairs of man, and such presumption is a legal one constantly applied by courts.

[3] Under it a status of marriage once shown might be presumed to continue until he who asserts the contrary establishes its discontinuance by divorce. But in all enlightened systems of jurisprudence it has been found necessary to make exceptions to general rules, which by reason of their universality are sometimes found deficient to attain the full ends of justice in a given case. Such exceptions, when well established as grounded on principle, are as potent as the general rule itself.

[4] There is a primary maxim of the law that, in favor of life, liberty, and innocence, all things are to be presumed. (In favorem vitæ, etc.)

[5] There is another: A wrong is not to be presumed. There are presumptions springing from the loins of those noble maxims which are the crowning glory of our law, viz., that the law presumes innocence, not guilt; morality, not immorality; marriage, not con

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