Brand v. State
Decision Date | 05 June 1941 |
Docket Number | 8 Div. 125. |
Parties | BRAND et al. v. STATE. |
Court | Alabama Supreme Court |
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.
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:
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:
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 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 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 38 Corpus Juris, p. 1276, as follows:
We have indicated the statute of this jurisdiction to the contrary. Code of 1923, § 7425.
We conclude with the observation that the opinion of the Court of Appeals in this case is not in accord with the decisions of this court in the case of Osoinach et al. v. Watkins et al., 235 Ala. 564, 180 So. 577, 580, 117 A.L.R. 179. In said case Dr. Watkins married Viola Watkins, who at the time of the marriage was Viola Chapman, the widow of Dr. Watkins' uncle. This court held the marriage void in that it was an incestuous marriage in violation of that part of Section 8991 of the Code of 1923, Code 1940, Tit. 34, § 1, which prohibits the son from marrying his uncle's widow. The marriage in the Watkins case took place in the State of Georgia, where it was legal for a man to marry his uncle's widow. However, in the Watkins case, as in the case at bar, the parties to the marriage returned to the State of Alabama and cohabited as man and wife, and the following rule was therein laid down:
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