Mason v. Mason

• Citation: 101 Ind. 25
• Decision Date: 21 March 1885
• Docket Number: 11,822
• Parties: Mason v. Mason
• Court: Indiana Supreme Court

101 Ind. 25

Mason v. Mason

No. 11,822

Supreme Court of Indiana

March 21, 1885

From the Jay Circuit Court.

The judgment is affirmed, with costs.

D. T Taylor, J. M. Smith and T. Bailey, for appellant.

J. W Headington and J. J. M. LaFollette, for appellee.

OPINION

Niblack J.

Complaint by Margaret J. Mason against George W. Mason, charging, in connection with the usual formal averments, that she was married to the defendant on the 12th day of July, 1880; that from that time until the 22d day of April, 1884, she lived with the defendant as his wife, treating him kindly and doing all in her power to make his home comfortable and pleasant; that on said last named day she was, in consequence of the defendant's continued abuse and his cruel and inhuman treatment of her, compelled to separate and live apart from him; wherefore a divorce and alimony were demanded.

The defendant answered, first, in general denial; secondly, admitting the marriage as charged, but averring that said marriage was in the first place, and had continued to be, void for the following reasons: That, on the 18th day of February, 1871, the plaintiff, at the county of Jay and State of Indiana, intermarried with one John Butcher; that, on the 20th day of January, 1880, she filed her petition in the Jay Circuit Court praying for a divorce from the said Butcher; that afterwards, at the March term, 1880, of said Jay Circuit Court, at a hearing of said cause, it was ordered, adjudged and decreed that the plaintiff be thereafter forever divorced from said Butcher; that, it appearing to the court that the only notice which had been given to Butcher of the pendency of the petition for a divorce against him was by publication in a newspaper, it was further ordered, adjudged and decreed that the plaintiff should not intermarry with any other person for a period of two years from the time of the rendition of said decree of divorce; that in violation of law, and of the inhibition contained as above in said decree of divorce, the plaintiff did, on said 12th day of July, 1880, at the county of Blackford, in this State, intermarry with the defendant, as charged in the complaint; that at the time of the rendition of such decree of divorce, the said Butcher was, as he still continued to be, in full life; that the plaintiff and defendant had no children living as the fruit of their said pretended marriage.

A demurrer was sustained to this second paragraph of answer, and the circuit court, after hearing the evidence, made a finding that the plaintiff ought to be divorced from the defendant, and was entitled to recover the sum of $ 100 for alimony, and decreed accordingly. The only complaint made here of the proceedings below is, that the circuit court erred in sustaining the demurrer, as above stated, to the second paragraph of the answer.

It was provided by section 6 of the act of March 10th, 1873, Acts 1873, p. 107, which is still in force, R. S. 1881, section 1030, that "Parties against whom a judgment of divorce shall hereafter be rendered, without other notice than publication in a newspaper, may, at any time within two years after the rendition of such judgment, have the same opened, and be allowed to defend as well on the granting of the divorce as in relation to the allowance of alimony and the disposition of property; and until the expiration of said two years, it shall not be lawful for the party obtaining such divorce to marry again; which shall be stated in the decree of the court."

Several of the States have statutes either similar or somewhat analogous to the foregoing provision, but we regret to find that there is a manifest want of harmony between many of the cases which have arisen under that class of statutes. The decisive weight of authority, however, appears to us to be in favor of the conclusion that a marriage, contracted in violation of such an order of court as that set up in defence in this case, is not absolutely void unless declared to be so by the statute under which the order was made. The first section of the act of 1873, supra, declares certain marriages to be wholly void, but neither that nor any other section of...