Tisdale v. Tisdale

• Decision Date: 19 August 1922
• Docket Number: 16761.
• Citation: Tisdale v. Tisdale, 121 Wash. 138, 209 P. 8 (Wash. 1922)
• Court: Washington Supreme Court
• Parties: TISDALE v. TISDALE.

209 P. 8

121 Wash. 138

TISDALE v. TISDALE.

No. 16761.

Supreme Court of Washington, En Banc.

August 19, 1922

Appeal from Superior Court, Snohomish County; Ralph C. Bell, Judge.

Action by Juliet Tisdale against Bert Tisdale. From a judgment dismissing the action, plaintiff appeals. Affirmed.

W. P Bell, of Everett, for appellant.

BRIDGES J.

By this action the plaintiff sought to annul the marriage between herself and the defendant. There is no dispute as to the facts, which were as follows: The marriage took place in the city of Seattle, on January 24, 1921. In some manner not explained, a marriage license was obtained. At the time of the marriage the plaintiff was 17 years of age and the defendant more than 21. Neither of the parents of the plaintiff gave their consent in writing, or otherwise, to the marriage; on the contrary, such marriage was had against their wishes and consent. After the marriage, and up to the time of the trial of the case, the parties had not lived together as husband and wife, or at all, and there had been no sexual intercourse. From these facts the trial court concluded that the marriage could not be set aside or annulled, except for reasons which, in law, would permit the annulment of the marriage if the plaintiff had been of the age of 18 years at the time of the marriage. Conformably to these conclusions, the court made a judgment dismissing the action. The plaintiff has appealed.

The statutes of this state affecting marriage are sections 7150, 7162, and 7164, Rem. Code. Section 7150 is as follows:

'Marriage is a civil contract which may be entered into by males of the age of twenty-one years, and females of the age of eighteen years, who are otherwise capable.'

Section 7162 is as follows:

'When either party to a marriage shall be incapable of consenting thereto, for want of legal age or a 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.'

Section 7164 provides for the marriage license and the conditions under which it shall be obtained.

This same general question has been before this court in Re Hollopeter, 52 Wash. 41, 100 P. 159, 21 L. R. A. (N. S.) 847, 132 Am. St. Rep. 952, 17 Ann. Cas. 91 and in Cushman v. Cushman, 80 Wash. 615, 142 P. 26, L. R. A. 1916C, 732. In the Hollopeter Case, the wife at the time of the marriage was 14 years of age and the husband 19. The marriage was had without the consent of the parents of the husband, who was the plaintiff, or petitioner, in the case. In the Cushman Case, the wife at the time of the marriage was 17 years of age, and her husband 18, and the marriage was performed without the consent of the parents of the plaintiff, who was the husband. In each of these cases the marriage was held valid. These cases are controlling of this one, unless they can be distinguished or are overruled. This is particularly true of the Cushman Case. The appellant seeks to distinguish them from the one at bar on the ground that in these cases the marriage had been consummated by sexual intercourse, whereas in this case there had been no such consummation. In other words, the appellant presses on us the doctrine that one, marrying while under the statutory age, may annul the marriage for that reason, if there has been no sexual intercourse after marriage; but if, under the same circumstances, the marriage has been followed by sexual relations, there may be no annulment.

It may be conceded that it is not impossible to draw this distinction from the language used in the Hollopeter Case although the question was not there directly discussed or decided; but such cannot be done in the Cushman...