Eaton v. Eaton

• Decision Date: 17 December 1902
• Citation: 66 Neb. 676,92 N.W. 995
• Parties: EATON v. EATON.
• Court: Nebraska Supreme Court

66 Neb. 676

92 N.W. 995

EATON

v.EATON.

Supreme Court of Nebraska.

Dec. 17, 1902.

Syllabus by the Court.

1. There can be no valid marriage without the consent of the state, and a positive prohibition does not evidence consent.

2. It is not the policy of the divorce law to encourage bigamy. Therefore a person who has been released from wedlock by judicial decision is not permitted to indulge the hope that, if he marry again in violation of the statute, the marriage will be valid unless the decision is reversed.

3. Section 45, c. 25, Comp. St. 1901, is preventive, and not merely repressive. It incapacitates a divorced person from contracting a valid marriage while the judgment divorcing him is subject to possible reversal.

4. In this state the only essential of a valid marriage is the free consent of competent parties to live together in the marriage relation.

5. Where a marriage contracted in good faith is void by reason of some removable impediment, the parties may, after the impediment has been removed, become lawfully united by continuing to live together with the intention of sustaining toward each other the relation of husband and wife. And even where the existence of the impediment and its removal were unknown, continued cohabitation evidences consent to live in wedlock.

6. Changes or modifications of existing statutes as an incidental result of adopting a new law, covering the entire subject to which it relates, are not forbidden by section 11, art. 3, of the constitution.

Appeal from district court, Cass county; Jessen, Judge.

Action by Harriett M. Eaton against Eli Eaton. Judgment for defendant, and plaintiff appeals. Reversed.

D. O. Dwyer, for appellant.

William Hayward, for appellee.

SULLIVAN, C. J.

On the 5th day of March, 1900, Harriett M. Eaton filed her amended petition in the district court of Cass county against Eli Eaton; alleging her marriage to him on March 21, 1899, alleging various acts of extreme cruelty on the part of the defendant toward her; the failure of her health in consequence thereof, and her enforced abandonment of her home; that she was without means of support; that defendant was possessed of valuable property, describing it; and concluding with a prayer for maintenance and support. The defendant answered, admitting the marriage as alleged by plaintiff, and denying generally all the other allegations of the petition, and in addition pleaded, by way of cross-bill, two causes of action: (1) That the marriage between himself and the plaintiff was brought about through the solicitation of the plaintiff, who made various false representations regarding herself, upon the faith of which he married her; that she was guilty of many acts of cruelty, more or less specifically set out; and (2) it was alleged that plaintiff had imposed upon the defendant in inducing him to marry her when by an act of the legislature (section 45, c. 25, Comp. St.) she was under a disability, having obtained a decree of divorce from a former husband, Enis Goff, on the 2d day of December, 1898, in Johnson county, Neb. Defendant also alleged that he was illiterate, and knew nothing of the act of the legislature referred to at the time of his marriage; that plaintiff represented herself as having been for a long time divorced from her former husband, and that she was capable of entering into a valid contract of marriage with defendant; that he first learned of the time when said divorce was obtained on March 9, 1900, and that plaintiff's marriage with the defendant was in violation of law, and therefore void. The cross-bill concluded with a prayer for divorce and for general relief, but subsequently, by leave of court, the prayer was amended. It now asks “that the said unlawful marriage between this defendant and said plaintiff be decreed a nullity, and that, should said court find said marriage lawful and valid, that said defendant be granted a divorce.” Plaintiff denied generally the allegation of the cross-bill, and pleaded that defendant had full knowledge of the divorce proceedings in Johnson county; that plaintiff knew nothing of the statute prohibiting remarriage until the filing of defendant's cross-bill; that such act was unconstitutional and void; that her marriage with defendant was in good faith, and that, for a number of months after the expiration of six months from the decree of divorce, plaintiff and defendant continued to live and cohabit together as husband and wife, and thereby the marriage contract was ratified; that defendant, having had full knowledge of the divorce proceedings in Johnson county, was estopped from alleging such matters as ground for a divorce from plaintiff; that the district court of Johnson county had jurisdiction to grant and did grant a divorce to plaintiff, without any limitations or conditions. A trial was had, which resulted in a finding that there was no equity in plaintiff's petition, and a finding against defendant on his first cause of action. Upon defendant's second cause of action the court found that the parties were married March 21, 1899; that plaintiff, Harriett M. Eaton, obtained a decree of divorce from Enis Goff in Johnson county December 2, 1898; that said decree of divorce was obtained without the knowledge of Eli Eaton; that the parties to this suit lived together until November 30, 1899; that the decree of divorce from Enis Goff, the former husband of plaintiff, was obtained less than six months prior to the marriage of plaintiff and defendant; that such marriage was in violation of law and a nullity; and that defendant had no knowledge of the time when the prior divorce was procured until just prior to the commencement of this action. The marriage between plaintiff and defendant was adjudged to be null and void and was set aside, and defendant released from all marital obligations on account of such marriage. To secure a reversal of this decree, the case has been brought to this court by appeal.

The evidence taken at the trial not having been preserved, the only question presented by the record is whether, upon the pleadings and findings of fact, the decision in favor of defendant is right.

The force and effect of the marriage ceremony performed March 21, 1899, has been much discussed by counsel, and will be first considered. Sections 1 and 2, c. 49, Sess. Laws 1885, are as follows:

“Section 1. It shall be unlawful for any person who shall obtain a decree of divorce to marry again during the time allowed by law for commencing proceedings in error or by appeal for the reversal of such decree, and in case such proceedings shall be instituted it shall be unlawful for the defendant in error or appellee to marry again during the pendency of such proceedings, and a violation of this act shall subject the party violating it to all the penalties of other cases of bigamy.

Sec. 2. No proceedings for reversing, vacating, or modifying any decree of divorce, except in so far as such proceedings shall affect only questions of alimony, property rights, custody of children, and other matters not affecting the marital relations of the parties shall be commenced, unless within six months after the rendition of such decree, or in case the person entitled to such proceedings is an infant, a person of unsound mind, within six months, exclusive of the time of such disability.”

The first section of this act, which is section 45 of the divorce law, has the effect, we think, of disqualifying a divorced person from marrying while the decree of divorce is subject to possible reversal. The will of the lawgiver is the law; and the avowed object of the legislature, as expressed in the title of the act of 1885, was “to prevent the marriage of divorced persons during the time allowed for proceedings to reverse the decree of divorce and during the pendency of such proceedings.” As there can be no valid marriage without the consent of the state, the easy and obvious way for the state to prevent objectionable marriages is to withhold its consent. By the legislation we are considering, the state has said to divorced persons, “Thou shalt not,” and in this we are unable to discover any implication of consent. The legislature aimed at prevention. We know this, because it has said so. But it is contended that, while aiming at prevention, it fell short of its object, and achieved only repression, and that the law, instead of putting an end to an obnoxious practice, acts as a mere deterrent,--a check and curb on the matrimonial impulse. Public policy no doubt favors the marriage contract, but it will not do to distort a plain statute in order to bring it into harmony with what the court may conceive to be sound policy. The legislature determines the policy of the state, and, it having declared in express terms that it intended by the act of 1885 to stop...