Wilhite v. Wilhite, 41 Kan. 154

Wilhite v. Wilhite

41 Kan. 154 | Kan. | 1889

The opinion of the court was delivered by

Johnston, J.:

The right of the plaintiff to alimony depends upon the validity of the marriage, the ceremony of which was performed between the parties to this action at Baker City, in Oregon, on February 2, 1884. This was the only question passed upon by the district court, and is the only one that we need to consider. The marriage ceremony performed between the parties appears to have been regular in form, and legal, unless the same was prohibited by the laws of Oregon, under which the validity of-the marriage must be determined. It seems that the plaintiff was formerly married to Daniel W. White, with whom she lived for many years, and several children were born of that marriage. Upon the application of White, the circuit court of Oregon granted a decree, divorcing him from the plaintiff on account of her fault, and awarding the custody of the children, some of whom were young, to him. This decree was granted on November 20, 1883, and on February 2, 1884, less than three months from the granting of the divorce, she married, or attempted to enter the marriage relation with, the defendant in this action. Within four weeks from this marriage there was a separation, and the reason it occurred, as-defendant alleges, is that he then learned that the plaintiff had no legal right to marry him, and that the pretended marriage between them was absolutely null and void. Since that time, they have never lived or cohabited together as husband and wife, and defendant claims that no such relation exists, and hence he resists the claim of the plaintiff for alimony. Under § 499 of the code of Oregon, a decree of divorce declaring the mar*159riage relation dissolved does not absolutely terminate the marriage relation, nor entirely free the parties from its obligations and liabilities. They are prohibited from contracting marriage with a third person until the case is heard and determined on appeal, and if no appeal is taken, until the expiration of the time allowed to take such appeal. Until that time neither of them has any more right to marry a third person than if the decree of divorce had not been rendered. And if either does, he or she will be liable the same as though no divorce had been granted. By the same code, an appeal in such cases is authorized and may be taken within six months from the rendition of the judgment or decree. (Oregon Code, § 527.) These provisions seem to be conclusive against the validity of the marriage upon which the plaintiff rests her claim. She asserts, however, that they do not govern her case, for the reason that she was in default of an answer in the divorce suit, and that a statute of that state precludes an appeal by a party against whom a judgment is given upon confession or for want of answer. (Oregon Code, § 526.) This provision, however, does not relieve her or take her case out of the six-months restriction. The prohibition imposed by § 499 seems to extend to cases and parties where no appeal is taken; and to prevent a decree of divorce from becoming an absolute finality in any case until the time for taking an appeal has expired. It would seem that the decree is not to take effect for six mouths after it is given, and if an appeal is taken, until it is heard and determined. Then again, there are few if any codes or courts that are so lax as to authorize or permit the giving of a judgment dissolving the marriage relation without evidence or investigation, upon mere default of the defendant to answer the allegations of the plaintiff, or upon the mere consent of the defendant that a.divorce shall be granted. The statute of Oregon wisely prescribes that in such cases the state is a party defendant, represented by the district attorney, who must be served with summons and is required to appear and answer. It is made his duty “so far as may be necessary to prevent fraud or collusion in such suit, to control the proceed*160ings on the part of the defense, and in case the defendant does not appear therein or defend against the same in good faith, to make a defense therein on behalf of the state.” (Oregon Civil Code, § 946.) Under the statutes referred to, the state, being a party defendant, would be entitled to an appeal, regardless of the action of other parties to the suit; and hence there is the same reason to await the expiration of the time within which an appeal may be taken as though the other defendant had answered. Her silence or consent does not limit the right of the district attorney to prosecute the action to the court of last resort for the prevention of fraud or collusion and for the protection of the interests of the state. The obvious and wise purpose of the statute is to prohibit divorced parties from remarrying with others until the time elapses when the decree divorcing them may be disturbed or reversed by proceedings on appeal. In the divorce proceedings under consideration, the state of Oregon appeared by its district attorney and filed an answer in the cause. A trial was had upon the issues formed, and upon testimony then taken the decree of divorce was granted. If it was conceded, as the plaintiff contends, that the statute did not arbitrarily prohibit either party from contracting marriage with a third person for a period of six months after the decree of divorce is granted, and only applies to cases where an appeal may be taken, still, as the state is a party defendant and may take an appeal, her case clearly comes within the statutory prohibition which renders the subsequent marriage void. In addition to this, we are inclined to think that the reasonable interpretation of § 499 absolutely forbids either of the parties from marrying another in any case until the expiration of six months after the decree of divorce is rendered; and where an appeal is taken, until that is heard and determined. The limitation of the time within which a party appealing may at his option prepare a statement to be attached to the record of the judgment or decree taken up for review does not shorten the time for taking an appeal, nor affect the question before us.

In our view, the marriage contract between the parties to *161this action was forbidden by law, and void; and therefore the judgment of the district court denying the plaintiff;s claim for alimony is correct, and must be affirmed.

All the Justices concurring.