Ex Parte Castro

• Decision Date: 27 June 1925
• Docket Number: (No. 4211.)
• Citation: 273 S.W. 795
• Parties: Ex parte CASTRO.
• Court: Texas Supreme Court

273 S.W. 795

Ex parte CASTRO.

(No. 4211.)

Supreme Court of Texas.

June 27, 1925.

Application by Henry Castro for writ of habeas corpus to discharge him from a judgment of the Ninety-Fourth District Court punishing him for contempt. Relator discharged.

J. R. Locke, of San Antonio, for relator.

CURETON, C. J.

This is a habeas corpus proceeding, in which Henry Castro applies for discharge from a judgment of the Ninety-Fourth district court punishing him for contempt.

The record shows that relator's confinement is based upon a judgment in contempt for having remarried within a year after a decree of divorce granted him on the 17th of August, 1923, on the ground of cruel treatment. The trial judge placed a clause in the decree, reading as follows:

"It is further ordered that neither party be permitted to marry within a year from this date, except to each other."

Henry Castro did marry within a year from the date of this judgment, and his former wife, Maria Castro, filed a motion in contempt and to dissolve the second marriage. This was heard on the 26th of June, 1924. The court declined to dissolve the second marriage, for reasons unnecessary to be stated, but did hold that relator was in contempt of court because he had violated the order quoted above from the divorce judgment, and entered a decree punishing him therefor.

Revised Statutes, art. 4632, as amended by chapter 82, General Laws of the Thirty-Seventh Legislature (Vernon's Ann. Civ. St. Supp. 1922, art. 4632), contains this provision:

"And provided, further, that neither party to a divorce suit, wherein a divorce is granted upon the ground of cruel treatment, shall marry any other person for a period of twelve months next after such divorce is granted, but the parties so divorced may marry each other at any time."

The statute simply forbids the second marriage within a year's time under certain circumstances, without declaring it void or providing any other form of punishment, and without authorizing the district court to insert any prohibitive or injunctive order relative to the same. Concerning this character of statute, Mr. Schouler in his late work (6th Ed.) on Marriage and Divorce, Vol. 2, § 1924, says:

"Where one marries again, although not permitted to do so, the second marriage may be void, or merely voidable.

"Marriages by divorced persons are commonly held void if entered into within the period after the decree when marriage is prohibited where this period is the time for appeal, or where the statute expressly declares such a marriage void, but where the statute simply forbids such a marriage without declaring it void it will not be so held, as the law favors the validity of marriages wherever possible.

"The great majority of the statutes prohibiting marriage within a certain time after divorce do not expressly declare whether such marriages within such time are void or voidable, and such statutes fall within three classes: Those which merely prohibit marriage within a certain time; those which declare the act of marriage criminal and provide a penalty; and those which declare the parties `incapable' of remarrying within such period. The prohibited marriage of the first class is usually declared voidable only, and the other two classes are usually held void."

It is thus seen that statutes of the character before us do not make a second marriage void, but merely voidable. The text of Mr. Schouler is supported by the great weight of authority. Wallace v. McDaniel, 59 Or. 378, 117 P. 314, L. R. A. 1916C, 744, and elaborate notes at the end of this case; Woodward v. Blake, 38 N. D. 38, 164 N. W. 156, L. R. A. 1918A, 88, Ann. Cas. 1918E, 552.

Since the language of the statute is sufficient only to make a marriage in violation of it voidable, it is obvious that the statute had no purpose to authorize the court to secure obedience thereto by the insertion of an injunctive order such as is before us. The penalty is that the second marriage may be annulled in a proper case at the suit of one having a justiciable interest therein, and not punishment for contempt. However, aside from the proposition just stated, which is a reason only for the conclusion that the district judge was without authority to insert in the order any such prohibitory language, it is well settled that statutes of this character do not authorize the trial judge to insert such an injunctive order in the decree, and...