It is conceded that the marriage of the plaintiff and defendant at Gary, Indiana, in November, 1920, was a valid marriage according to the' laws of the state
It is to be noted that the plaintiff and the defendant married before the expiration of one year from the date of the decree of divorce in Illinois. At that time, ch. 40, sec. la,' Smith-PIurd Illinois Ann. Stats., was in force, which prohibited either of the parties from mаrrying any person other than the opposite party for the period of one year from the time the decree was granted, “and every person marrying contrary to the provisions of this section shall be punished •by imprisonment in the penitentiary for not less than one year, nor more than three years, and said marriage shall be held absolutely void.”
Sec. la, ch. 40, was repealed by (Laws 1923, p. 327) ch. 40, Smith-Hurd Illinois Ann. Stats., in force July 1, 1923. The repealing act also validates all marriages contracted in violation of sec. la if otherwise legal and vested property rights are not affected.
It is apparent that if the parties to this action had taken up their residence in the state of Illinois at or after the passage of the repealing and validating act in 1923, the marriage would have been held valid in Illinois. While the courts of Illinois have held that where citizens of the state of Illinois while temporarily in a foreign jurisdiction are there married, the state of Illinois has power to declare that such marriage contracted in violation of the law of the state of their domicile will not be recognized (Wilson v. Cook,
It is to be noted that the defendant in this case was not at the time of the rendition of the decree of divorce from her first husband or thereafter at any time a resident of the
However, it is argued that being a resident of the state of Wisconsin and there domiciled in November, 1920, the marriage is void for the reason that it is contrary to the public policy of this state. The laws of Wisconsin (sec. 245.03) make it unlawful for any pеrson who is a party to an action of divorce from the bonds of matrimony in any court in this state, to marry again until one year after the judgment of divorce is entered.
By sec. 245.04 (1), Stats., it is provided: ■
“If any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state shall go into another state or country and there contract a marriage prohibited and declared void by the laws of this state, such marriage shall be null and void fоr all purposes in this state with the same effect as though such prohibited marriage had been entered into in this state.”
It is to be noted that the prohibition in seс. 245.03 is against the marriage of a party to an action for divorce in any court in' this state. The defendant was not divorced by the decree of any court in this state but by a decree of the court of the sister state of Illinois. If it had been the intention of the legislature, in the modification of the existing rules of law relating to the validity of marriages in other jurisdictions, to extend the public policy of the state to the point of declaring void marriages contracted in violation of the law of other states, it would undoubtedly have said so. If such a restriction were valid as to citizens of this state, it is apparent that it might so operate as to do injustice. No
Plowever, at the time the decree of divorce ‘was entered by the court of the state of Illinois, and at the time the defendant contracted the Indiana marriage in 1920, there was in force in this state sec. 2330m, sub. 2, which provided that no marriage should be contracted in this state by a party rеsiding and intending to continue to reside in another state or jurisdiction, if such marriage would be void if contracted in such other state or jurisdiction, and the statute dеclared every violation of the statute to be null and void.
It must be noted, however, that at the time of her marriage in Indiana in 1920 the defendant was not a resident of the state of Illinois and did not intend to reside there. In this respect this case is widely different than the case of Hall v. Industrial Comm.
It was found as a fact that the plaintiff and the person with whom she сontracted the Indiana marriage were at the time both residents of Chicago, Illinois; that within two months after their marriage they returned to the city of Chicagо and resided there for nearly two years until May 1, 1914, then went to Barron, Wisconsin, where the husband was killed on November 2, 1914. In the Hall Case the court recognized that in holding the marriage void it was going a step further than any previous case had gone, but was of the opinion that it was a step in the right direction. The court said:
“The Illinois cоurt had jurisdiction of plaintiff’s person and it was competent for it. to fix and declare her status. Such status so declared being founded upon grounds of*549 sound publiс policy should be respected by at least all sister states having the same or similar laws.”
As we have already seen, neither the plaintiff nor the defendant was a resident of the state of Illinois at the time of the Indiana marriage, and the Illinois statute had no extraterritorial effect. While it had no extraterritоrial effect, if we were to hold that it had, we should be obliged to take with it the validating statute and the marriage would have been valid in the state of Illinois at аny time after the validating act was in effect. Twigger v. Twigger,
This case is ruled by Owen v. Owen,
Another material variance between Owen v. Owen and Hall v. Industrial Comm. is the fact that the decree in the Hall Case by its terms prohibited remarriage within a year. In that case both parties were residents of Illinois and returned to Illinois and resided there for nearly two years. Here neither of the parties to this action at the time of the
By the Court. — Judgment affirmed.