State v. Cone

86 Wis. 498 | Wis. | 1893

"WiNslow, J.

The question is, Was the first marriage void or voidable only? If void, then there was no bigamy; if voidable only by the decree of a court of competent jurisdiction, then there was a marriage subsisting until such decree was rendered, albeit an imperfect one. Speaking of such a marriage, it was said by this court in the case of Eliot v. Eliot, 77 Wis. 634: “ This marriage is not an absolute nullity. It is only annulled from such time as shall be fixed by the judgment of the court. R. S. sec. 2350.¹ 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.” This language was used advisedly, and is supported by the great weight of authority. We see no reason for departing from it now. Beggs v. State, 55 Ala. 108, and authorities cited. The case of Shafher v. State, 20 Ohio, 1, is an authority to the contrary, but we do not deem it well supported either in reason or authority. It follows that the question submitted must be answered in the affirmative.

By the Court.— Question answered in the affirmative.

1 R S. seo. 2350, provides that when either party to a marriage, for want of age or understanding, shall be incapable of assenting thereto, or when the consent of either party shall have been obtained by force or fraud, and there shall have been no subsequent voluntary cohabitation, “ the marriage shall be void from such time as shall be fixed by the judgment of a court of competent authority declaring the nullity thereof.” - Rep.