Noble v. Noble

• Decision Date: 02 December 1941
• Docket Number: No. 28.,28.
• Citation: 300 N.W. 885,299 Mich. 565
• Parties: NOBLE v. NOBLE et al.
• Court: Michigan Supreme Court

299 Mich. 565

300 N.W. 885

NOBLE

v.NOBLE et al.

No. 28.

Supreme Court of Michigan.

Dec. 2, 1941.

Suit by Arliss E. Noble, sometimes known as Arliss E. Leonard, by her next friend, Elsie E. Lowery, against John M. Noble and others to vacate a prior decree annulling the plaintiff's marriage. From a decree dismissing the bill, the plaintiff appeals.

Bill reinstated and the case remanded.Appeal from Circuit Court, Jackson County, in Chancery. John simpson, judge.

Argued before the Entire Bench.

Rosenburg, Painter, Kelly & Cristy, of Jackson, for appellant.

Albert B. Carroll and William H. Aubrey, both of Jackson, for appellee.

WIEST, Justice.

In July, 1938, plaintiff, then 17, and defendant, then 19 years of age, residents of Jackson county, this State, went to Elkhart, Indiana, to get married and there misrepresented their ages, procured a marriage license on July 27, 1938, and, the same day at Ekhart, were united in marriage by Rev. B. B. Shake, a minister of the gospel. They came back to Michigan, the father of plaintiff had himself appointed next friend and, as such, on August 16, 1938, filed a bill in the circuit court for the county of Jackson, alleging ‘the said parties were married in form of law but not in legal effect’; the license was procured by misrepresentation of ages; that under the laws of Indiana their ages rendered them incapable of marriage without consent of their parents and no consent was given; that under the law of Michigan plaintiff's age barred a license to marry; the pretended marriage was void under the laws of the state of Michigan and no cohabitation followed the marriage. Defendant appeared by guardian ad litem and filed an answer, neither admitting nor denying the allegations in the bill, and later consented that the case be heard without his presence or testimony. At the hearing of that case plaintiff testified to misrepresentations of ages in procuring the license; that the marriage was without the consent of her parents and since the marriage ceremony she had not at any time ‘lived with John Noble as husband and wife’.

Counsel for plaintiff introduced a certified copy of Act No. 136, Pub.Acts 1852 of Indiana, declaratory of the law regulating marriage.

The court found the marriage was without valid license by reason of misrepresentation of the ages of the parties and without consent of plaintiff's parents or dispensed with by residence in Indiana, and decreed the marriage null and void. No appeal was taken.

June 25, 1940, plaintiff, by a different next friend, filed the present bill in the circuit court for Jackson county to vacate the former decree annulling the marriage. The bill alleged the validity of the marriage under the laws of the state of Indiana; no jurisdiction of the court under the allegations in the bill in the annulment case to adjudge the marriage null and void, and asked that the former decree be vacated. On motion of defendant, John M. Noble, the bill was dismissed, the court holding that the bill was in the nature of a bill of review and, under Court Rule No. 48, could only be filed within two months from the entry of the former decree and that the court ‘had inherent chancery powers to grant the decree annulling the marriage upon the grounds alleged in the bill of complaint and the testimony as taken in open court’. Plaintiff reviews by appeal and, upon this hearing, we must take as true allegations of fact in the bill and apply the law thereto.

The bill, in substance, alleges that the former bill was filed under coercion exercised over plaintiff by her father, who was her next friend therein; that she is now pregnant with child by defendant; that under the allegations in the former bill the court was without jurisdiction to annul the marriage which was valid in the state of Indiana.

Under the allegations in the bill for annulment and proofs in support thereof the court was without jurisdiction to decreethe annulment. If the marriage was valid in the state of Indiana it was valid here. Hutchins v. Kimmell, 31 Mich. 126, 18 Am.Rep. 164;In re Estate of Osborn, 273 Mich. 589, 263 N.W. 880. The marriage could be annulled only upon grounds which rendered it void or voidable under the lex loci contractus. Though the parties went to Indiana to avoid Michigan law relative to marriage that did not affect their status under Indiana law. The age permitting marriage in Indiana is 16 years for females and 18 for males. Burns' Indiana Stat.Ann. § 44-101. All persons are required to secure a license and the clerk is forbidden to issue a license without the consent of the parent if the female is under 18 or the male is under 21 years of age. Where there is no parent or guardian resident in the State, one month's residence by the female in the county wherein the license is sought is required, Burns,' Stat.Ann. §§ 44-201, 44 -202. Although penalties are imposed upon various individuals for violations of the statute, no statute makes the resulting marriage void or even voidable. On the contrary it is provided: ‘No marriage shall be void or voidable for the want of...