Lyannes v. Lyannes

• Decision Date: 04 May 1920
• Citation: 177 N.W. 683,171 Wis. 381
• Parties: LYANNES v. LYANNES.
• Court: Wisconsin Supreme Court

171 Wis. 381

177 N.W. 683

LYANNES

v.LYANNES.

Supreme Court of Wisconsin.

May 4, 1920.

Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.

Action by Stella Michaelson Lyannes against Earl Lyannes. From order overruling demurrer to complaint, defendant appeals. Reversed and remanded.

The trial court overruled the defendant's general demurrer which alleged that plaintiff's complaint failed to state a cause of action.

The complaint alleged substantially as follows:

The due appointment of a guardian ad litem for plaintiff.

That at Bessemer, Mich., on June 14, 1919, there was a form of marriage between the parties, both at that time being, intending to continue to be, and since are, residents of the state of Wisconsin.

That defendant falsely represented to plaintiff that he was at that time 21 years of age, but that the marriage was legal in Michigan without complying with the laws of Wisconsin.

That in applying for a license in Michigan for such marriage he falsely stated that both of the parties were over 21.

That in fact the defendant's real age was 18 and the plaintiff's 20, and that the parents of neither gave their consent to a marriage.

That defendant failed to submit to a physical examination for the purpose of determining whether or not he was afflicted with a venereal disease, pursuant to section 2339m, Stats.

That defendant failed to secure the consent of his parents for such marriage under section 2339n5, Stats.

That defendant while prohibited in the state of Wisconsin from entering into such marriage went to Michigan and there contracted a marriage prohibited in this state.

That plaintiff was induced to consent to such form of marriage because of her belief in the representations of defendant above stated, by her ignorance of his misstatements in his application for a license, and by her ignorance of the requirements for a legal marriage under the laws of the state of Wisconsin, and that otherwise she never would have consented to the said marriage.

That defendant fraudulently contracted said marriage in Michigan for the purpose of evading the laws of Wisconsin.

That immediately upon her discovery of the falsity of the representations aforesaid and the evasion of the Wisconsin law and on June 15, 1919 (being the day subsequent to said marriage), she left defendant and has never since cohabited with him.

Plaintiff prays that the marriage be annulled and declared void as provided by statute.

From the order overruling the demurrer defendant appeals.

The material parts of several of the statutes considered on this appeal, other than those set out at length in the opinion, are here inserted:

Marriage.

Chapter 107.

“ Who Shall Not Marry; Divorced Persons. Section 2330. 1. No marriage shall be contracted while either of the parties has a husband or wife living, nor between persons who are nearer of kin than second cousins, excepting that marriage may be contracted between first cousins where the female has attained the age of fifty years. Relationship under this section shall be computed by the rule of the civil law, whether the parties to the marriage are of the half or of the whole blood. No insane person, epileptic or idiot shall be capable of contracting marriage.

2. It shall not be lawful for any person, who is a party to an action for divorce from the bonds of matrimony, in any court in this state, to marry again until one year after judgment of divorce is entered, and the marriage of any such person solemnized before the expiration of one year from the date of the entry or judgment of divorce shall be null and void.”

Marriage Evasion Law.

“ Marriage Abroad to Circumvent the Laws. Section 2330m1.” [Set out in full in decision.]

Eugenic Marriage Law.

“ Antenuptial Physical Examination.Section 2339m. 1. All male persons making application for license to marry shall at any time within fifteen days prior to such application, be examined as to the existence or nonexistence in such person of any venereal disease, and it shall be unlawful for the county clerk of any county to issue a license to marry to any person who fails to present and file with such county clerk a certificate setting forth that such person is free from venereal diseases so nearly as can be determined by a thorough examination and by the application of the recognized clinical and laboratory tests of scientific search, when in the discretion of the examining physician such clinical and laboratory tests are necessary.”

[Then follow provisions for microscopical examination and the Wasserman test.]

“Such certificate shall be made by a physician, licensed to practice in this state or in the state in which such male person resides, shall be filed with the application for license to marry” [and then follows form of certificate].

“2. Such examiners shall be physicians duly licensed to practice in this state, or in the state in which such male person resides.” [Then follows provision for the fee and for the examination by county or asylum physician if applicant be indigent.]

“3. Any county clerk who shall unlawfully issue a license to marry to any person who fails to present and file the certificate provided by subsection 1 of this section, or any party or parties having knowledge of any matter relating or pertaining to the examination of any applicant for license to marry, who shall disclose the same, or any portion thereof, except as may be required by law, shall upon proof thereof be punished by a fine of not more than one hundred dollars or by imprisonment not more than six months.

“4. Any physician who shall knowingly and willfully make any false statement in the certificate provided for in subsection 1 of this section shall be punished by a fine of not more than one hundred dollars or by imprisonment not more than six months.

“ Marriage of Person Having Had Venereal Disease.Section 2339n1. No person who has ever been afflicted with gonorrhea or syphilis shall be granted a marriage license in this state until such person shall furnish to the county clerk issuing the license a certificate.” [Then follow provisions as to the persons who shall issue and the manner and form of such certificate.]

“4. Any person who shall obtain any such license contrary to the provisions of this section shall, upon conviction thereof, be punished by a fine of not less than one hundred dollars or by imprisonment in the county jail for not less than three months, or by both such fine and imprisonment. * * *

Marriage Licenses. Marriage Contracts; How Made.Section 2339n1. Marriage may be validly contracted in this state only after a license has been issued therefor, in the manner following. * * *

Consent of Parent or Guardian.Section 2339n5. No license shall be issued if either of the contracting parties be under the marriageable age of consent as established by law. If either of the contracting parties be between the age of eighteen years and twenty-one years if a male, and between the age of fifteen years and eighteen years if a female, no license shall be issued without the consent of his or her parents or guardian, or of the parent having the actual care, custody and control of said party or parties, given before the county clerk under oath, or certified under the hand of such parents or guardian as aforesaid, and properly verified by affidavit before a notary public or other official authorized by law to take affidavits, which certificate shall be filed of record in the office of said county clerk and entered by him on the marriage license docket before issuing said license; provided, that if there be no guardian or parent having the actual care, custody and control of said party or parties, then the judge of the court having probate jurisdiction in the county where the application is pending may, after hearing, upon proper cause shown, make an order allowing the marriage of said party or parties.”

Divorce.

Chapter 109.

“ Jurisdiction. Section 2348. The circuit court has jurisdiction of all actions to affirm or annul a marriage, or for a divorce from the bond of matrimony, or from bed and board, and authority to do all acts and things necessary and proper in such actions and to carry its orders and judgments into execution as hereinafter prescribed. All such actions shall be commenced and conducted and the orders and judgments therein enforced according to the provisions of these statutes in respect to actions in courts of record, as far as applicable, except as provided in this chapter.

Marriages; Annulment; Causes for.Section 2351. A marriage may be annulled for any of the following causes existing at the time of marriage:

Impotency, etc. (1) Incurable physical impotency or incapacity of copulation, at the suit of either party, provided that the party making the application was ignorant of such impotency or incapacity at the time of marriage.

Consanguinity, etc. (2) Consanguinity or affinity where the parties are nearer of kin than the second cousins, computing by the rule of civil law, whether of the half or of the whole blood, at the suit of either party; but when any such marriage shall not have been annulled during the life time of the parties, the validity thereof shall not be inquired into after the death of either party.

Former Marriage. (3) When such marriage was contracted while either of the parties thereto had a husband or wife living, at the suit of either party.

Fraud, etc. (4) Fraud, force, or coercion, at the suit of the innocent and injured party, unless the marriage has been confirmed by the acts of the injured party.

Insanity. (5) Insanity, idiocy, or such want of understanding as renders either party incapable of assenting to marriage, at the suit of the other, or at the suit of a guardian of the lunatic or incompetent, or of the lunatic or incompetent on regaining reason, unless such lunatic or incompetent after regaining reason, has confirmed the marriage; provided that where the party compos mentis is the...