The consideration of evidence not involved in our first ruling in this case, nor in the ruling by the Supreme Court in reversing the judgment of this court, in our opinion requires the conclusion that the trial judge erred in granting a new trial.
The Supreme Court reversed the judgment of this court in this case. McCormick v. Denny, 212 Ga. 444
(93 S. E. 2d 578). The Supreme Court has reversed our judgment in this case on the evidence which it had before it. There is evidence in the record which we did not consider in our determination of the case and which the Supreme Court did not have before it in its consideration of the case. For our authority in such an event, see Lawler v. Life Ins. Co. of Ga., 91 Ga. App. 443
, 444 (3) (85 S. E. 2d 814). The Supreme Court's directive to this court is that such further action be taken by this court as may be necessary to give effect to the Supreme Court's opinion. The evidence referred to is the application of deceased for a marriage license, sworn to by him on February 12, 1947, an exact copy of which is as follows:
"Application for marriage license.
Husband Residence 698 Piedmont Ave., N. E.
Occupation Mechanic Number of previous marriages One
Date Place When Nov. 1946 Where Rockbridge Co. Va.
Date of contemplated marriage Feb. 12, 1947
Place of contemplated marriage Father's residence George McCormick
Mother's name Annie McCormick Parents' nationality Amer.
Sworn to and subscribed before me this 12 day of Feb. 1947
M. L. Shirley
Notary Public Fulton County, Ga."
The question and answer covering when and where a divorce was obtained are duplicated on the application and the person filling it in simply omitted one set of questions and answers. Furthermore, even if the placing of the questions and answers was carelessness, a consideration of the purpose of the questions and answers shows beyond doubt what was meant. Another instance is that the father's name was "Atlanta" and the father's residence, "George McCormick, etc." The evidence demanded the finding that the deceased represented that he and his first wife were divorced in Rockbridge County, Va., in November, 1946. This answer was given under oath and demanded the finding that the deceased swore falsely and that he did not obtain a divorce anywhere. He did not obtain a divorce. He might have mistakenly thought that his wife went through with her divorce and obtained a decree but he did not know it because it was not true. But whatever he intended or thought, his answers in the application show an admission that he himself did not obtain a divorce anywhere. The admission made by the deceased is binding on the defendant in error here if for no other reason because he made it in the application for a marriage license relied on by her to sustain her relationship and position in this case. Whigby v. Burnham, 135 Ga. 584
(69 S. E. 1114) is not authority to the contrary, nor is any case cited therein. There is no statement or admission in this case which contradicts the fact that the deceased was married to Dora V. McCormick. Marriages are followed by divorces and the statement that a divorce has been granted is not a statement that there was no marriage. The ruling in Mayo v. Owen, 208 Ga. 483
(67 S. E. 2d 709), in our opinion, is authority for our conclusion. There Mayo's statement on oath in a different proceeding is analogous to the deceased's false oath in this case.
The proved fact that the deceased swore falsely in obtaining the marriage license is more than an impeachment of his representation. It requires the inference that he had not obtained a divorce anywhere for the reason that if he had done so he knew it as a fact and certainly would have told the truth about it in applying for the license. The deceased's false statement is a fact like any other fact from which inferences may be drawn. The fact that he made a false statement is not hearsay but assuming that it is, it was part of the res gestae of obtaining the license and, if not admissible for that reason, it is from the necessity of the case, since Mrs. Dora McCormick would have to examine the records in every jurisdiction in forty-eight States to disprove the fact that the deceased obtained a divorce from his first wife.
The same kind of inference was permitted in Mayo v. Owen, supra. Of course, there the party himself made the false statement but whether the deceased was a party is irrelevant. The same inference is demanded in this case whether it is made against the deceased or his alleged second wife. The logic of the inference is as strong in one case as the other. The alleged second wife is a privy in alleged status and in alleged estate with the deceased but in our opinion that is not necessary to the validity of the inference. The gravamen of the state of affairs is not that the deceased sought to impeach his first marriage but that he misrepresented that his first marriage had been dissolved and the place where. The plaintiff in error did not attack the marriage certificate as a whole and it was permissible for her to show that a misrepresentation was made therein. Merchants' Bank of Macon v. Rawls, 7 Ga. 191 (50 Am. D. 394).
We think the evidence demanded the finding that the purported marriage to the defendant in error was void and that the trial court erred in granting a new trial. Our former judgment on the return of this case to this court is vacated and the judgment reversed.
Judgment reversed. Felton, C. J., and Nichols, J., concur.