Sturgis v. Sturgis

• Decision Date: 28 January 1908
• Citation: Sturgis v. Sturgis, 51 Or. 10, 93 P. 696 (Or. 1908)
• Parties: STURGIS v. STURGIS.
• Court: Oregon Supreme Court

93 P. 696

51 Or. 10

STURGIS v. STURGIS.

Supreme Court of Oregon

January 28, 1908

Appeal from Circuit Court, Umatilla County; H.J. Bean, Judge.

Action for divorce by Ada V. Sturgis against Wm. P. Sturgis, a spendthrift; James A. Fee, his guardian, being a party defendant. From an order directing defendants to pay suit money and temporary alimony pending the suit, the guardian appeals. Decree reversed as to the guardian personally.

This is a suit for divorce and alimony. Defendant W.P. Sturgis was adjudged a spendthrift by the county court of Umatilla county in 1905, being then 24 years old, and Jas. A. Fee was appointed the guardian of his person and estate, which was of the value of about $10,000. Thereafter, while such guardianship continued, viz., on January 13, 1906, plaintiff and defendant Sturgis desired to intermarry, but said guardian refused his consent thereto; and for the purpose of avoiding the marriage laws of this state, of which they were residents, they thereupon went to the state of Washington where they were married, returning immediately. The said guardian is made a party defendant for the purpose of subjecting the estate of the defendant Sturgis to the payment of suit money and alimony. The court made an intermediate order directing that defendant pay to the clerk of the court for plaintiff as suit money $600 and $50 per month as temporary alimony pending the suit, which order the guardian thereafter moved to set aside. Many affidavits were filed by the defendant in support of his motion, and counter affidavits by the plaintiff; said affidavits being directed to the question of the validity of the marriage plaintiff's knowledge of the guardianship at the time of the marriage, and as to collusion between plaintiff, and defendant Sturgis in the divorce suit for the purpose of wresting from the guardian part of the estate. Upon the hearing the court modified the order, and ordered and decreed that defendants pay to the clerk of the court fortwith $150 as suit money and $50 as temporary alimony the 15th of every month pending the suit, from which order defendant James A Fee appeals.

John McCourt, for appellant.

J.P Winter, for respondent.

EAKIN J. (after stating the facts as above).

It is first insisted by the plaintiff that the order appealed from is not an appealable order. By the Constitution of this state (article 7, § 6) it is provided that: "The Supreme Court shall have jurisdiction only to revise the final decisions of the circuit courts." This provision of the Constitution, it is held in Portland v. Gaston, 38 Or. 533, 63 P. 1051, is not self-executing, and the cases that may be appealed must be prescribed by the Legislature, and therefore the provisions of the statute prescribing the cases that may or may not be appealed is conclusive. B. & C. Comp. § 547, as amended in 1907 (Laws 1907, p. 313, c. 162, § 6), provides that: "A judgment or decree may be reviewed as prescribed in this chapter, and not otherwise. An order affecting a substantial right and which in effect determines the action or suit so as to prevent a judgment or decree therein, or a final order affecting a substantial right, and made in a proceeding after judgment or decree, or setting aside a judgment and granting a new trial for the purpose of being reviewed, shall be deemed a judgment or decree." Section 548, Id., provides that: "Any party to a judgment or decree other than a judgment or decree given by confession, or for want of an answer, may appeal therefrom." The terms of this section are very general, and constitute no limitation upon the constitutional provision above quoted. Section 547, supra, after the first sentence, is not a limitation of the cases that may be appealed, but an enlargement thereof, by which certain orders are included within the term "judgment or decree." Therefore, if the judgment or decree comes within the terms of the Constitution, viz., a "final decision," it is appealable.

Without determining whether an interlocutory order for suit money, rendered against a party to the suit, is appealable, which is not necessary to this decision, it is clear that the order or decree here is a final decision as to Jas. A. Fee, the guardian. He is not a party to the litigation. The suit is properly only against the ward, but the guardian appears in his behalf to defend for him, and not to defend any proceeding against himself, as we shall see further on; and as the order or decree is against the guardian, and he has no personal interest in the litigation and no right to appeal from the final decree in the suit, his appearance being only for the ward, therefore the decree is final as to him. Furthermore, the decree is void as to the guardian, the court having no jurisdiction to render a personal judgment against him, as no cause of action is alleged against him, and a void order or decree is appealable. Deering v. Quivey, 26 Or. 556, 38 P. 710. In this proceeding Jas. A. Fee alone appeals on his own behalf.

The validity of the marriage is questioned by the guardian upon the ground that it was consummated without his consent, and that, even if valid under the laws of the state of Washington, where it was solemnized, yet, both parties being domiciled in this state and having secured the marriage in Washington for the purpose of avoiding the marriage laws of this state, the marriage is void here. Section 5216, B. & C. Comp., provides that: "Marriage is a civil contract, which may be entered into by males of the age of eighteen years, and females of the age of fifteen years, who are otherwise capable." Section 5217, Id., prohibits certain marriages, viz., "when either party thereto had a wife or husband living at the time of such marriage; (2) when the parties thereto are first cousins or any nearer of kin to each other; (3) when either of the parties is a white person and the other a negro, or Mongolian, or a person of one-fourth or more of negro or Mongolian blood." Section 5218, Id., provides that: "When either party to a marriage shall be incapable of consenting thereto, for want of legal age or sufficient understanding or when the consent of either party shall be obtained by force, or fraud, such marriage is voidable, but only at the suit of the party laboring under the disability, or upon whom the force or fraud is imposed." Under chapter 8, relating to divorce proceedings, section 503, Id., provides that marriages declared voidable by section 5218, supra, shall be void from the time they are so declared by the decree. Section 502, Id., provides in effect that all marriages prohibited by section 5217, supra, "shall, if solemnized within this state, be absolutely void." Thus it will be seen by section 5218, supra, that the marriage of the plaintiff and defendant Sturgis, even if solemnized in this state, would not be void, but only voidable. The rule as gathered from the authorities seems to be that in general a marriage valid where solemnized is valid everywhere, not only in other states generally, but in the state of the domicile of the parties, even when they have left their own state to marry elsewhere for the purpose of avoiding the laws of the state of their domicile.

There are two exceptions to this rule, viz., marriages which are deemed contrary to the law of nature as generally recognized in Christian countries, such as involve polygamy and incest, and marriages which the local lawmaking power has declared shall not be allowed any validity, either in express terms or by necessary implication, viz., such as are prohibited by section 5217, supra. Jackson v. Jackson, 82 Md. 17, 33 A. 317, 34 L.R.A. 773; State of Georgia v. Tutty (C.C.) 41 F. 753, 7 L.R.A. 50; Conn v. Conn, 2 Kan.App. 419, 42 P. 1006; Pennegar and Haney v. State, 87 Tenn. 245, 10 S.W. 305, 2 L.R.A. 703, 10 Am.St.Rep. 648; Parton v. Hervey, 1 Gray (Mass.) 119; Ex parte Chace, 26 R.I. 351, 58 A. 978, 69 L.R.A. 493; Commonwealth of Mass. v. Graham, 157 Mass. 73, 31 N.E. 706, 16 L.R.A. 578, 34 Am.St.Rep. 25; Everett v. Morrison, 69 Hun (N.Y.) 146, 23 N.Y.S. 377. This distinction is also referred to in McLennan v. McLennan, 31 Or. 480, at page 483, 50 P. 802, at page 803, 38 L.R.A. 863, 65 Am.St.Rep. 835, where Mr. Justice Bean says: "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." The marriage in this case does not come within the first exception, as being contrary to the law of nature as generally recognized in Christian countries, such as polygamy or those involving incest; neither is it one specially prohibited by our statute. B. & C. Comp. § 5217. Nor does our statute contemplate that such marriages as the one involved here shall be deemed void, but, if in violation of the statute, are only voidable.

If the marriage of a ward under guardianship takes place in this state without the consent of the guardian, it involves the violation of the law only as to...