6 So.2d 446 (Ala. 1941), 8 Div. 125, Brand v. State

Docket Nº:8 Div. 125.
Citation:6 So.2d 446, 242 Ala. 15
Opinion Judge:THOMAS, Justice.
Party Name:BRAND et al. v. STATE.
Attorney:Thos. S. Lawson, Atty. Gen., and W. M. McQueen, Asst. Atty. Gen., for the petition. J. Foy Gen, of Russellville, opposed.
Case Date:June 05, 1941
Court:Supreme Court of Alabama

Page 446

6 So.2d 446 (Ala. 1941)

242 Ala. 15

BRAND et al.



8 Div. 125.

Supreme Court of Alabama

June 5, 1941

Rehearing Denied Oct. 23, 1941.

Certiorari to Court of Appeals.

Thos. S. Lawson, Atty. Gen., and W. M. McQueen, Asst. Atty. Gen., for the petition.

J. Foy Guin, of Russellville, opposed.

THOMAS, Justice.

The case is not governed by the general rule announced in Smith v. Goldsmith et al., 223 Ala. 155, 134 So. 651, that the validity of the marriage is determined by the law of the place where contracted.

The state thus states the true contention:

"* * * that the law which governs this case is the provisions of Section 7425 of Code of 1923 [Code 1940, Tit. 34, § 38] and the interpretation placed thereon by the appellate courts of this State. Section 7425 of the Code reads as follows:

"'7425. Rights of parties to remarry after divorce.-When a decree has been rendered granting a divorce in this state,

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the court shall decree that neither party shall again marry except to each other until sixty days after decree rendered, and that if an appeal is taken within sixty days, neither party shall again marry except to each other during the pendency of said appeal.'

"In compliance with the provisions of the above section, the Law & Equity Court of Franklin County, in the divorce decrees entered by it, decreed that the parties to the divorce could not again marry, except to each other, until sixty days after the rendition of the decree, and that if an appeal was taken from the decree within sixty days, then neither of the parties could again marry, except to each other, during the pendency of the appeal."

In disobedience to and in disregard of these decrees, the defendants on the day after the decrees were entered, for the purpose of evading the laws of the State of Alabama, went into the State of Mississippi and attempted to change husbands and wives by being married in that state.

In Vance v. State, 210 Ala. 9, 97 So. 230, this court has indicated the force and effect of Section 7425, Code 1923, and held that Vance was guilty of bigamy due to the fact that he contracted marriage in disregard of a decree similar to the decrees entered by the Law and Equity Court of Franklin County in this case. It is therein said: "The decree of divorce is inoperative until 60 days after it was rendered, and if an appeal from it was taken within the 60 days it was inoperative until the appeal was dismissed or affirmed. Section 3811, 6389, 6390, Code 1907; Barfield v. Barfield, 139 Ala. 290, 35 So. 884; 7 C.J. 1162, § 14, headnote 73; Crawford v. State, 73 Miss. 172, 18 So. 848, 35 L.R.A. 224."

From the above case, divorce decrees entered by the courts of this state are held to be inoperative for a period of sixty days after they are rendered. If an appeal is taken, they are inoperative during pendency of appeal. The commonly-understood meaning of the word "inoperative" is that a thing is not in effect.

It is a well-known rule of law that the judgments and decrees of the courts of this state rest in the breasts of the courts for a period of thirty days, and at any time during this thirty-day period the court may set aside and vacate its judgments and decrees. This is what was done in the Law and Equity Court of Franklin County. On March 23, 1939, the judge of said court, on his own motion, set aside and held for naught the divorce decrees entered by him on February 22, 1939, affecting these defendants. There was a mandamus filed by Johnson against the judge seeking to have him set aside his decree vacating these divorce decrees; and in Ex parte Johnson, 238 Ala. 584, 192 So. 508, this court held that the judge of the Law and Equity Court of Franklin County was within his right in setting aside these divorce decrees, since these decrees were in the breast of the court for a period of thirty days from date of rendition.

The Court of Appeals, by its opinion in this case, apparently takes the position that this prosecution is for the purpose of prosecuting these parties for marrying in the State of Mississippi. Such is not the case. The prosecution in this case is for a man and woman cohabiting as man and wife within the State of Alabama when each has another living husband or wife. In this regard, it is apparent that the decision of the Court of Appeals in this case is in conflict with the decision of this court in Ex parte Johnson, supra. That case recognized and sustained the rule that decrees [242 Ala. 17] of the courts of this state may be set aside by the judge granting such decrees within thirty days after they are rendered, and did not recognize the marriage celebrated by these parties in Mississippi, as such action would not have upheld the action of the Law and Equity Court of Frankin County in setting aside the divorce decrees formerly entered.

In the Johnson case, supra, this court did not recognize the Mississippi marriage in question, as heretofore stated, but on the other hand, the Court of Appeals held that the marriage was legal in Mississippi and was likewise legal in Alabama, and that these parties were not guilty of bigamy when they returned to Alabama and cohabited as man and wife.

In First National Bank v. Garrison, 235 Ala. 687, 180 So. 690, this court held that a person who acted under a decree of a court in this jurisdiction within thirty days therefrom, did so at his own risk. Such is the misfortune of these defendants, by going into the State of Mississippi within the thirty-day period from rendition of the divorce decrees and there marrying and returning to Alabama, where they lived as man and wife. They did so at their own risk, and it results that they were guilty

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of bigamy by so doing under the law that obtains in Alabama.

The Court of Appeals, as we take it, based its opinion on the case of Smith v. Goldsmith, 223 Ala. 155, 134 So. 651, 652, but as heretofore stated, that case is not in point, as the sixty-day period, prescribed by Section 7425, Code of 1923, and the thirty-day period in which decrees of courts rest in the breasts of the courts, were not there considered, and no public policy of the state was presented. In the Goldsmith case, supra, it is stated that there are exceptions to the general rule laid down, the same being as stated in...

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