77 Wis. 634 | Wis. | 1890
I. The. first ground of demurrer assigned is that the court has no jurisdiction of the person of the plaintiff. This is based on the assumption that the complaint fails to show the plaintiff was a resident of this state when the action was commenced. Rut we think the complaint sufficiently alleges such residence. The averment therein is that the parties have been residents of this state for “ one year immediately preceding the commencement of this action.” We do not perceive how this can be true and the plaintiff have been a nonresident of the state when the action was commenced. Moreover, the provision of the statute on this subject (R. S. sec. 2359), so far as applicable here, is that “ no divorce shall be granted unless the plaintiff shall have resided in this state one year immediately preceding the túne of the commencement of the action, un
II. The second and third grounds of demurrer go to the sufficiency of the complaint. They will be considered in their order.
1. It is claimed that, 'if the parties voluntarily cohabited after the marriage, no action can be maintained under sec. 2350 for the annulment of the marriage, and that the amended complaint shows such cohabitation. Although the learned counsel for the respective parties agree that the complaint may be considered as containing an averment of voluntary cohabitation after marriage, the fact is there is no such averment therein. It is only stated that after the marriage the parties “ had or attempted to have sexual intercourse.” This falls far short of an averment that they had such intercourse. In determining the validity of a pleading we must take it as it is, notwithstanding counsel agree that, for the purposes of the argument and decision, it may be treated as something which it is not. Hence, we cannot regard the amended complaint as containing an allegation of such voluntary cohabitation. But if the construction of sec. 2350 for which counsel for defendant contends be adopted, we are willing to assume, for the purposes of this appeal, that the complaint should negative such cohabitation. This not being done, if defendant’s construction of the statute prevails, the complaint would (on the above assumption) be equally as defective as though it expressly admitted such cohabitation. This view renders a construction of the statute necessary. Sec. 2350 reads as follows: “ When either of the parties to a marriage, for want of age or understanding, shall be incapable of assenting thereto, or when the consent of either party shall have
If voluntary cohabitation before the age of consent defeats an action for the annulment of a marriage under sec. 2350, there is no necessity for the provision in sec. 2353 that such cohabitation after the age of consent is reached shall have that effect. In that case it would be entirely superfluous. But if the qualifying words in sec. 2350 be held to relate only to actions to annul marriages to which consent has been obtained by force or fraud, both sections are operative. We must assume the legislature intended that both should be operative, else both would not have been enacted. This is too plain an evidence of legislative intention to be disregarded.
Tbe view we have taken of tbis branch of tbe case renders it unnecessary to determine here tbe meaning of tbe term “ voluntary cohabitation ” as tbe same is used in tbe statutes above cited, which was discussed by counsel in argument.
2. Sec. 2329, R. S., provides that “ every male person who shall have attained tbe full age of eighteen years, and every female who shall have attained tbe full age of fifteen years, shall be capable in law of contracting marriage, if otherwise competent.” We have no statute which expressly provides that persons under tbe ages respectively named shall be incapable of contracting marriage. Because of tbe omission of such prohibition in tbe statute, counsel for defendant has submitted an argument in support of tbe proposition that valid and binding marriages may still be contracted by . persons who have reached tbe common-law ages of consent (which is understood to be fourteen years for males and twelve years for females), although they have not reached tbe respective ages specified in tbe statute. Tbe argument
3. Lastly, counsel for defendant maintains that if the right to an annulment of this marriage for want of age exists, the plaintiff cannot be heard to assert such right until he reaches the statutory age of consent, to wit, eighteen years. Some such rule may have prevailed in early times, but the later authorities seem to reject it, we think for sufficient reasons. Tyler, in his treatise on Infancy and Cov-erture, says: “ The better opinion now is that parties marrying before the age of consent may dissent to the marriage within nonage, and thus avoid it in totoP Page 126.
This marriage is not an absolute nullity. It is only annulled from such time as shall be fixed by the judgment of the court. Sec. 2350. That time may, and in many contingencies should, be fixed at a later date than that of the marriage. During the time intervening the marriage is valid. It is, so to speak, a marriage on condition subsequent, the condition being its disaffirmance by a party thereto and annulment thereof by the court from the time named. If the plaintiff had capacity to become a party to such imperfect and inchoate or conditional marriage, he should have capacity to disaffirm it any time thereafter, before it has ripened into an absolute marriage, by invoking the authority of the court to annul it under the statute. No good reason is perceived why the parties should be compelled to remain in so unfortunate a position until the plaintiff becomes eighteen years of age. Again, rule XXIX,
Upon the whole case our conclusion is that the court properly overruled the demurrer to the complaint.
TTT. The defendant has submitted a motion that the plaintiff be required to pay her a reasonable sum for her expenses of the action in this court. The motion was based upon letters addressed by plaintiff to defendant since the marriage, and upon affidavits, and was resisted by counter-affidavits. The contents of these need not be here stated any further than to say they show the plaintiff has no pecuniary means and no capacity to earn money; that his father is a man of some wealth, and advised the commencement of this suit, and aided in its prosecution by retaining counsel for his son, and that defendant’s father is not able to bear the expenses of the litigation. In view of these circumstances, and of all the circumstances in the case so far as we know them, we have reached the conclusion, although not without some doubt and hesitation, that the plaintiff should be required to bear some reasonable portion of the defendant’s expenses of the litigation in this court. But no very large sum can properly be allowed. We have concluded to fix it at $100. The decision of this court on the demurrer settles the law of the case in several important particulars, and we see no good reason why the case , should hereafter be long protracted or very expensive. The plaintiff’s father is of ample pecuniary ability, and is to some extent responsible for this suit. Although under no legal obligation to advance the money required, we think plaintiff’s guardian may reasonably expect that he will do so. In
By the Oourt.— The motion for suit money is granted, and an order therefor will he entered, as ahoye indicated, giving the plaintiff twenty days from the entry of the order in which to comply therewith. The order of the superior court overruling the demurrer to the complaint is affirmed, without costs.