Have you ever wondered about the very first opinion ever to appear in New Jersey Reports? If not (and it’s certainly more than understandable if you have not expended time thinking about that), today is the day to do so, since it was on October 11, 1948 that the Supreme Court issued its decision in Smith v. Hrzich, 1 N.J. 1 (1948). That opinion was written by Justice Wachenfeld for a unanimous Court.
The issue involved an attempt by plaintiff Smith to annul her marriage to defendant Hrzich on the ground that she was already a party to a common law marriage to another man, Heitzman. The trial level proceedings resulted in a denial of that relief due to plaintiff’s unclean hands. The basis for that ruling was Tyll v. Keller, 94 N.J. Eq. 426 (E. & A. 1923). That case held that a party who seeks to annul a marriage based on the existence of a prior subsisting marriage was required to show, among other things, that when the second marriage took place, the party was unaware of the alleged first marriage.
The only real question in Smith thus was whether plaintiff “was not cognizant of her lawful marriage to Heitzman.” Justice Wachenfeld found that plaintiff had not demonstrated her lack of awareness of that prior marriage. On the contrary, “[t]he undisputed record shows she lived and cohabited with Heitzman, adopted and used his name for a period of sixteen years, held herself out as his wife for for all this time, and gave birth to nine children of this marriage. This issue was legitimate and she would have been the first to defend it.”
Although common law marriage had been abolished by statute in 1939, Smith had begun to live with Heitzman in 1925, and the statute “did not change the law as to those marriages which were consummated prior to 1939.” Accordingly, the decision below was affirmed.
This was not a seminal case, and it has been cited only rarely since its issuance. Nonetheless, the case has the distinction of being the very first opinion in the very first volume of New Jersey Reports. That is a distinction that will remain for all time.