(dissenting in part and concurring in result).
I neither agree nor disagree with the authorities cited in the main opinion and their application to the facts of this case. However, I disagree with the conclusion of the main opinion to the effect that the court had no jurisdiction of the subject matter in this case.
I concur in the result, but on other grounds. Looking at the facts in a light most .favorable to plaintiff and sustaining the trial court if there are facts justifying his decision, I am convinced that the decision should be affirmed.
The plaintiff testified that she sought out counsel to obtain an annulment of her marriage to Bradford, which would tend to support the contention and the fact that she was not married to him and thus was free to marry Caffall. Caffall said he had no positive evidence that Mrs. Caffall was a married woman at the time he married her. He sent a detective to Evanston, Wyoming, to determine this fact, who returned with a marriage certificate showing a purported prior marriage by Mrs. Caffall in October, 1935, but for aught this record discloses, her former husband or purported'husband may have obtained a divorce or an annulment from her during the nine months between the marriage or purported marriage to him and that to defendant here. Caffall testified further that he was divorced from his former wife in 1934 or 1935, and when asked if his divorce was not final at the time he married Mrs'. Caffall, "he replied *412that he thought it was but wouldn’t say for sure. All of this evidence pointed to the fact that Mrs. Caffall may not have been a married woman at the time Mr. Caffall married her, and he not a married man at that time. It is my opinion that the defendant, in attacking the previous judgment of some nine years before, did not sustain ■his burden of proof of lack of jurisdiction, which proof is demanded by many authorities to be of a clear and convincing nature. I believe that the court was correct in concluding that defendant had not sustained such burden, — and that it was correct even though arrived at by a preponderance of the evidence.