DIXON v. ROGERS

DIXON v. ROGERS
1954 OK 333
318 P.2d 854
Case Number: 36403
Decided: 11/23/1954
Supreme Court of Oklahoma

EMILY E. DIXON, ALSO KNOWN AS EMILY E. DICKSON, AND EARL I. DIXON, ALSO KNOWN AS EARL I. DICKSON, PLAINTIFFS IN ERROR,
v.
SAMUEL N. ROGERS, DEFENDANT IN ERROR.

Syllabus by the Court

¶0 1. Parties to a divorce action may remarry again within six months after the divorce is granted and remarriage may be shown by facts from which a common-law marriage may be presumed.
2. The presumption arising in favor of the validity of a second marriage is not a conclusive presumption, but is what is known as a rebuttable presumption, and the one contending against the legality of a second marriage is not required to make plenary proof of a negative averment. It is enough that he introduce such evidence as, in the absence of all counter-testimony will afford reasonable grounds for presuming that the allegation is true, and when it is done the onus probandi will be thrown on his adversary.
3. Litigants are not at liberty to rely upon presumptions against ascertained or established facts.
4. Where law of a sister state is not treated as matters of fact and established as such, court will indulge the presumption that law of sister state is the same as law of the state.

Appeal from the District Court, Harper County, C.R. Board, J.

Herbert Hope, W.G. Long, Pauls Valley, for plaintiffs in error.

D.P. Parker, M.A. Holcomb, Buffalo, Richard W. Fowler, Oklahoma City, for defendant in error.

JOHNSON, V.C.J.

¶1 The defendants filed an application to vacate the judgment on the ground that the summons was irregular. Such proceeding must be by motion under 12 O.S. 1951 § 1031. On the 21st day of December, 1953, the trial court overruled the motion. On February 20, 1954, the court overruled a motion for new trial. The notice of intention to appeal was not given until after the latter order. A motion to dismiss has been filed for the reason the order overruling the motion for new trial was unnecessary and did not extend the time to give the notice of appeal. The motion to dismiss must be sustained. The filing and determination of the motion for new trial served no purpose to extend the time for commencing or perfecting the appeal. Thomas v. Richey, 171 Okl. 349, 42 P.2d 489.

¶2 In Long v. McMahan, Okl., 258 P.2d 616, it is stated:

"'Where a party desiring to appeal fails to give notice in open court of his intention to appeal to this court at the time judgment is rendered or within ten days thereafter if motion for new trial is unnecessary, this court is without jurisdiction to review such judgment and an appeal therefrom will be dismissed.'"

¶3 Appeal dismissed.