McAllum v. Spinks

Citations

• 129 Miss. 237
• 91 So. 694

Syllabus

<p>3. Process. Writ without seal of the court or ’a statement of the fact if court has no seal is hacl on appeal hy defendant served therewith.</p> <p>On direct appeal a writ without the seal of the court, or a statement of the fact, if there were no seal, is bad.</p> <p>2. Divorce. Where original subpoena issued does not show seal, it will he presumed in a collateral attack upon the decree after thirty years that the court caused a proper subpoena to be executed.</p> <p>In a collateral attack upon a decree of divorce after the lapse of over thirty years, where the original subpoena issued for the defendant does not show a seal of the court,' it will be presumed that the court before granting the decree ordered a proper subpoena issued which was properly executed upon the defendant.</p> <p>3. Pkooksk. Return of sheriff on subpoena for defendant held not subject to collateral attack.</p> <p>Where the return of the sheriff upon >a subpoena for a defendant in a divorce suit reads as follows: “Executed by personal service and copy” — this is a substantial compliance with section 1627, Code 1880. At best, it was a mere irregularity, could have been amended if necessary in that suit, and cannot be attacked in a collateral proceeding.</p> <p>4. Marriage. Marriage, duly proved presumed valid, though former husband of woman is still living.</p> <p>A marriage duly proved will be presumed valid, although a former husband of the woman may be still living, and the burden of proof is upon the party asserting the invalidity of the marriage to prove that there has been no divorce of the former marriage.</p> <p>5. Marriage. How the fact of marriage may be proved.</p> <p>The fact of marriage may be established by evidence of the acts and declarations of the parties, by proof of the general repute in the family, and by proof of the declarations of deceased persons, who were related to them by blood or marriage.</p>