Ex parte State ex rel. Attorney General

Citation97 So. 230,210 Ala. 9
Decision Date03 May 1923
Docket Number7 Div. 393.
PartiesEX PARTE STATE EX REL. ATTY. GEN. VANCE v. STATE.
CourtSupreme Court of Alabama

Rehearing Denied May 31, 1923.

Certiorari to Court of Appeals.

Clifton Vance was convicted of bigamy, and the judgment of his conviction being reversed by the Court of Appeals, the State on the relation of its Attorney General, applies for certiorari to that court to review and revise the judgment and decision in the case of Clifton Vance v. State of Alabama, 97 So. 231. Writ awarded; reversed and remanded.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for petitioner.

Graves Embry, of Talladega, and Allen & McEwen, of Birmingham opposed.

MILLER J.

The appellant, Clifton Vance, was convicted of bigamy-marrying another having a former wife living at the time-under section 6389, Code 1907.

The provisions of section 6390 do not apply to any person who prior to such second marriage had procured a decree from a court of competent jurisdiction, dissolving his or her former marriage and allowing him or her the privilege of marrying again. Section 6390, Code 1907.

Section 3811, Code 1907, provides:

"When a decree has been rendered granting a divorce in this state, 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."

This defendant, appellant, married Minnie Vance about nine years ago; she is still living. On December 2, 1922, he obtained a divorce from her by decree of the circuit court of Jefferson county, in equity, which decree dissolved their former marriage. This was a court of competent jurisdiction to render such decree. Section 3793, Code 1907. This decree ordered that Harvey Clifton Vance "shall not marry again except to said Minnie Vance until sixty days after this date and if an appeal is taken within sixty days, then he shall not marry again except to said Minnie Vance during the pendency of said appeal."

If he remarried his former wife, Minnie Vance, within the 60 days this would eo instanti nullify the appeal if taken, or the right to take it by her; but his marriage to another within the 60 days would have no such effect on the appeal. It would in no way affect the appeal or the right to appeal by his former wife. On December 24, 1921, less than 60 days after the decree of divorce was rendered, the defendant married Pernie Baker in Talladega county, Ala., and lived with her as his wife until arrested for the offense charged in this indictment.

The statute, section 3811, specially directs the court granting the divorce to decree that neither party shall marry, except each other, until 60 days after the decree is rendered, and that if an appeal is taken within the 60 days neither party shall marry again except each other during the pendency of the appeal.

This defendant remarried within 60 days after the decree was rendered; he did not remarry his former wife, as permitted by the decree and the statute, so he violated the decree and the statute. The statute, section 3811, and the decree prohibited the remarriage to another-other than his former wife-during the 60 days. This statute [3811] must be read and construed in connection with section 6390. It is true section 6390 provides a defendant cannot be convicted of bigamy if he had prior to such second marriage procured a decree from a court of competent jurisdiction, dissolving his or her former marriage, and allowing him or her the privilege of marrying again. In the instant case a court of competent jurisdiction had granted a decree of divorce, dissolving the former marriage of defendant and Minnie Vance, and allowed him the privilege of marrying again; but...

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9 cases
  • Brand v. State
    • United States
    • Supreme Court of Alabama
    • June 5, 1941
    ...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 has indicated the force and effect of Section 7425, Code 1923, and held that Vance was guilty of bigamy due to the fact t......
  • Harper v. Atlanta & W. P. R. Co, (No.15619.)
    • United States
    • United States Court of Appeals (Georgia)
    • December 15, 1924
    ...upon the issue of negligence. Upon the issue of the plaintiff's alleged widowhood the defendant "introduced the case of Attorney General v. Vance, 210 Ala. 9, 97 So. 230, as evidence of the Alabama law upon the matter of marriage and divorce" the same not being otherwise referred to or more......
  • Harper v. Atlanta & W.P.R. Co.
    • United States
    • United States Court of Appeals (Georgia)
    • December 15, 1924
    ...upon the issue of negligence. Upon the issue of the plaintiff's alleged widowhood the defendant "introduced the case of Attorney General v. Vance, 210 Ala. 9, 97 So. 230, as evidence of the Alabama law upon the matter of and divorce" the same not being otherwise referred to or more fully sh......
  • Schurink v. United States, 12791.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • November 18, 1949
    ...it alter the fact that at the insured's death appellant was not his widow. Ex parte Jones, 249 Ala. 386, 31 So.2d 314; Cf. Vance v. State, 210 Ala. 9, 97 So. 230; Brand v. State, 242 Ala. 15, 6 So.2d 446; Barfield v. Barfield, 139 Ala. 290, 35 So. It follows that the judgment of the distric......
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