*1 v. THE JON ANGVALL OF MONTANA The STATE ex rel. DIS JUDICIAL THIRTEENTH COURT DISTRICT AND FOR IN TRICT, Montana, State YELLOWSTONE, Charles OF COUNTY Luedke, District Respondent. Judge Presiding, No. 11462. August April
Submitted
1968. Decided
George C. respondents. Kelleher, argued, Billings,
Robert L. MR. CHIEF JUSTICE JAMES HARRISON T. delivered Opiniоn of the Court. ap- original proceeding wherein
This is an relator seeks an *2 re- propriate in writ. an action commеnced the Ang- Angvall against relator, spondent by Jon court injuries vall, sought damages husband, her sustained for moved by by Relator when struck an automobile driven him. summary judgment, by motion was denied for which spondent court. relator, injured,
At the time Patricia
she and
Angvall,
Jon
were
and wife.
husband
It was
September
injuries
18,
18,
November
occurred on
On
damages
22,
her
1966, she filed
action for
and on November
an
mar-
1966,
action to obtаin an annulment of
she filed
her
February
raige
a
to Jon
decree was entered on
always been that a wife
the rule has
In Montana
in
personal
against
her husband for
action
Conley
upon
by
while
are married.
juries
her husband
her
Williams,
(1932); Kelly
Conley,
425,
“At common law thе absence of statuatory provision affecting liability spouses for or between personal torts, neither of the can divorce against maintain an tort personal the other for com during сoverture, prevents mitted rule this such an action * # against wife *”. the former husband Husband and Court 396, pp. 886, C.J.S. Wife 887. This § distinguish divоrces sees reason between annulments allowing as far as actions to the termination of marriage. remaining only question is whether Jon and legally married at the time she her in- sustained
juries. R.C.M. enacted as section which in effect at the time chapter Laws provided: and Patricia Jon any pеrson, unlawful for who is a “It resi- state, court or Montana *3 party elsewhere, to dent who is again marry judgmеnt until six months after of divorce is marriage person granted, and of solemnized the grant- of six months from the еxpiration date of the the before divorce shall void.” 48-151 ing judgment of be Section of 1, chaptеr repealed by section Laws of later It is that Jon sta- violation the above tute, 1966,marry Angvall Sheridan, on did June Wyoming. In the district court contended per- that within because Jon married the six months iod, statute, аbove violation the there was no valid mar- action; is, riage she maintain her that could, therefоre, marriage inception that was from null and void. section 48-151 must in connection
Former be read with covering marriages. of Title 48 48-105 other sections dealing incompetency parties, marriage with that to states marriages beginning”. Also, are “void from sec- certain dealing subsequent marriages with that 48-111 tion dеclares 486
two conditions must met, otherwise a be
is. beginning”. “void from say hand,
On the other section not 48-151 did marriages that within months of a void six divorce are only the beginning, thеy that are void. must also This Court annulling marriages. Section Chapter look to 2 of Title 48 on party 48-201 “Either stаtes: to an void incestuous or may the same proceed, by court, have district to so declared.” view of Section we that the word hold 48-151 means should its nullity void from the time shall be declared a court of be competent Ragan jurisdiction. Cox, See 210 Ark. 194 Cal.App.2d (1946); Estate, and In 63 S.W.2d re Gosnell’s P.2d and hold reаffirm the cases We also time of Patricia and Jon were married at the accident; subject annul an action to that such acci- time of the but married granted, now, has been dent annulment against her former hus- action here referred to should have been band. The motion granted. issue, directed
Let a control writ denying that the order judge, providing spondent court order and a new summary judgment be vacated set aside judgment relator. summary granting made entered be own costs. bear their Each shall HARRISON ADAIR, JOHN CONWAY MR. JUSTICES CASTLES concur. *4 (dissenting) HASWELL .- JUSTICE
MR.
I dissent. pur- R.C.M.1947, rendered the 48-151,
In.my view “void” relator marriage “unlawful” and ported prev- re-marrying prohibited within six months ' declared purported violated the ious divorce. Such public policy R.C.M.1947. of this state. Section has, majоrity effect, statutory construed the declara- “void” is mean it is “voidable”. tion that been public policy doing, prohibiting so has illusory making validity meaningless de- rendered parties. pendent the will As I see effеct majority opinion prohibited that the valid judicially one of the has it until declared void which at only beeames prospectively. it I would time construe legal used in the word “void” as statute mean withоut effect purpose. time for Angvalls foregoing I would hold that For reasons spousal immunity married, rule hаs were never motion court’s application, and that the trial denial of relator’s was correct.