McLennan v. McLennan

• Decision Date: 08 November 1897
• Citation: 50 P. 802,31 Or. 480
• Parties: McLENNAN v. McLENNAN.
• Court: Oregon Supreme Court

50 P. 802

31 Or. 480

McLENNAN v. McLENNAN.

Supreme Court of Oregon

November 8, 1897

Appeal from circuit court, Multnomah county; Loyal B. Stearns Judge.

Suit by Malinda F. McLennan against Charles McLennan to annul a marriage. From a decree refusing the relief sought, plaintiff appeals. Reversed.

S.R Harrington, for appellant.

T.S. Potter, for respondent.

BEAN, J.

On September 3, 1889, the plaintiff was divorced by the circuit court of Multnomah county from her then husband, and in 22 days thereafter, while still a resident of and domiciled in this state, was married in Vancouver, Wash., to the present defendant, who was at the time also a resident and domiciled here. The plaintiff, being advised that the latter marriage was premature and unlawful, brought this suit to declare it void; which being decided adversely to her, she brings the cause here by appeal. The sole question presented on the appeal is as to the validity of the Vancouver marriage, and its determination depends upon the construction of section 503 of our statute (1 Hill's Ann.Laws), and its effect upon marriages solemnized in a neighboring state. By this section it is provided that "a decree declaring a marriage void or dissolved at the suit or claim of either party shall have the effect to terminate such marriage as to both parties, except that neither party shall be capable of contracting marriage with a third person, and if he or she does so contract, shall be liable therefor as if such decree had not been given, until the suit has been heard and determined on appeal, and if no appeal be taken, the expiration of the period allowed by this Code to take such appeal." It is clear that a marriage in this state in violation of this section would be null and void, because, by its provisions; the parties are incapable of entering into such a relation within the time specified, for the reason that the decree does not to that extent terminate the former marriage. The statute in effect declares that such marriage shall, for that purpose, continue during the time in which an appeal may be taken from the decree, or, in case of an appeal, during the pendency thereof. Until the expiration of such time, the status of the parties, so far as the right to remarry is concerned, remains the same as if no decree had been rendered. For all other purposes the decree is full and complete, but, on grounds of public policy, the legislature has provided that pending an appeal from such decree, if one be taken, and, if not, during the time in which it may be taken, the parties shall be incapable of contracting marriage with a third person, and, under this provision of the law neither of them has any more right to do so than if the decree had not been given. During that time the decree is suspended or inoperative to that extent, and both parties without regard to their guilt, are utterly powerless to make a valid contract of marriage with a third person. It will be observed that the statute declares that neither party to the decree shall be capable of contracting marriage with a third person during the time such decree is subject to review by an appellate tribunal, and not merely that it shall not be lawful for them to do so. It goes directly to their ability or capacity to contract, and there is a distinction made in the books between the marriage of divorced parties declared by law incapable of remarrying and a marriage in violation of some statutory prohibition penal in its nature. In the one case the marriage is absolutely void, and in the other it is often held to be valid, although the party may be punished criminally for violating the prohibitory statute. This distinction is very clearly pointed out by Judge Clark in Conn v. Conn (Kan.App.) 42 P. 1006. The obvious purpose and object of the statute is to enable either party aggrieved by a decree of divorce to have the same reviewed in an appellate court, and to that end it is provided that pending such right neither party shall be capable of doing an act which would render a reversal nugatory. A construction of the statute which would permit a marriage within the time limited would be not only...