Ex parte Hollopeter

• Court: Washington Supreme Court
• Writing for the Court: CHADWICK, J.
• Citation: Ex parte Hollopeter, 100 P. 159, 52 Wash. 41 (Wash. 1909)
• Decision Date: 01 March 1909
• Parties: Ex parte HOLLOPETER. v. HOLLOPETER. GLENN et ux.

100 P. 159

52 Wash. 41

Ex parte HOLLOPETER. GLENN et ux. v. HOLLOPETER.

Supreme Court of Washington

March 1, 1909

Appeal from Superior Court, Thurston County; Mason Irwin, Judge.

Habeas corpus proceedings by Grover Hollopeter, on behalf of Imogene Hollopeter, against Nat Glenn and wife, and proceedings by Nat Glenn and wife against Grover Hollopeter, to annul the marriage of their daughter to him; the two cases being consolidated. From an adverse decree, said Grover Hollopeter appeals. Decree reversed, with instructions to issue the writ.

King & King and E. N. Steele, for appellant.

Vance & Mitchell, for respondents.

CHADWICK J.

This was an action brought originally by Grover Hollopeter, as husband of Imogene Hollopeter, on her behalf, alleging that Nat Glenn and Mrs. Nat Glenn, her parents, were restraining her of her liberty. From the petition and return it appears that on the 7th day of July, 1908, petitioner procured a marriage license to be issued by the county auditor of Thurston county authorizing the marriage of Grover Hollopeter and Imogene Glenn; that they were married on the same day by a minister of the gospel; that they went on a wedding trip to North Yakima and Tacoma, where they remained several days that the marriage was consummated; that Imogene Glenn was a minor of the age of 14 years, and Grover Hollopeter a minor of the age of 19 years; that the writing purporting to give the consent of Mrs. Glenn to the issuance of a license was made out and signed by her daughter Imogene, as she contends with her mother's permission and consent and in her presence. The mother, however, denies that this was so. The testimony is conflicting, and we are content to hold with the trial court that Mrs. Glenn did not in fact consent to the marriage. Petitioner was arrested at Tacoma, while returning from the wedding trip, upon a charge of frogery. While he was in custody Mr. and Mrs. Glenn forcibly took possession of the person of Imogene, and have since restrained her of her liberty. A proceeding for annulment of the marriage was begun by the parents of Imogene while the habeas corpus proceeding was pending. Both cases were consolidated, and are now brought here upon the appeal of Grover Hollopeter.

From the testimony it appears that Grover Hollopeter was a young man of full growth, and has been for some time past earning his own living, and while at work has earned from $3 to $4 per day. The testimony would also indicate that Imogene was a young woman of mature mind. The court found 'That Imogene Glenn was on the ___ day of July, 1908, of the age 14 years; that on said date the defendant was of the age of 19 years; that on the said last-mentioned date the said minor child, Imogene Glenn, and the said minor, Grover Hollopeter, procured a license to marry from the auditor of above county and state, and thereafter were united in marriage by a properly ordained minister of the gospel. That the parents, or either of them, of the said minor child, Imogene Glenn, did not consent in writing or at all, as required by law, to the issuance of said marriage license or to the said marriage. That the signature purporting to be the signature of one of the parents of said Imogene Glenn was affixed thereto by the said minor without the knowledge or consent of her parents or either of them, all of which facts were known to the defendant Grover Hollopeter. That the parents of the said Grover Hollopeter did not sign the written consent to the marriage of their son, and that their names were affixed to said consent by one Mrs. _____ Gilbert, a daughter of defendant's parents. That both of the said parents of defendant are able to read and write and that they had in a vague and general way authorized their daughter Mrs. Gilbert, to consent to the said marriage, the vague authorization having no reference to any particular time. That the defendant's parents appeared in court and expressed their willingness to ratify, and did ratify, in so far as they might, the act of their said daughter in signing their names to said consent. That after the marriage between said Imogene Glenn and Grover Hollopeter that they did cohabit together as husband and wife, and did continue to so cohabit for over a week and until the plaintiff herein N. G. Glenn and R. A. Glenn by main force took the said Imogene Glenn from the said Grover Hollopeter, and took her to their home, where they ever since said time have kept her confined against her will and against the will and desire of this defendant. That Grover is able and willing and desires to make a home for the said Imogene Glenn and provide for her, and that the said Imogene Glenn is willing and desires to make her home with the said defendant.' From which facts the court make the following conclusions of law: 'That Imogene Glenn being of nonage, her parents, being her natural and lawful guardians, may on her behalf, and on their own behalf, as such parents, maintain an action to avoid and annul such marriage. That the said marriage should be annulled, avoided, and set aside, as having been entered into by parties not capable of contracting, and the conditions precedent to the issuance of the marriage license never having been complied with.'

We are asked to hold the marriage void for the reasons that the license was obtained by fraud, and that Imogene was incapable of consenting thereto. Assuming the fact to be as found by the lower court that the mother of Imogene did not consent to the marriage of her daughter, this would not avoid the marriage in the absence of a statute expressly declaring it to be so. 19 Am. & Eng. Enc. Law, p. 1190; 26 Cyc. 835. In the absence of any express declaration that a marriage without a license is void, the marriage is universally held to be valid. 19 Am. & Eng. Enc. Law, 1191. A party to the wrongful issuance of a license or who wrongfully performs the marriage ceremony may be punished. Ballinger's Ann. Codes & St. §§ 4482, 4483 (Pierce's Code, § 6275); 26 Cyc. 835. A party who procures the issuance of a marriage license by means of a fraudulent affidavit may be convicted of forgery but a sound public policy has declared that the validity of the marriage in such cases shall not be inquired into. Bishop, Marriage & Divorce, § 529. Imogene was within the common-law age of consent, so that we cannot hold as a matter of law, as did the lower court, that she was incapable of consenting to the marriage. But it is argued that the common-law age of consent is overcome in this state by the enactment of the law fixing the age of 18 as the age under which a female cannot consent to carnal sexual intercourse. The fact that the law permits the marriage of minors at all is enough to overcome the...