Wallace v. McDaniel

• Decision Date: 01 August 1911
• Citation: 59 Or. 378,117 P. 314
• Parties: WALLACE v. McDANIEL et al.
• Court: Oregon Supreme Court

117 P. 314

59 Or. 378

WALLACE v. McDANIEL et al.

Supreme Court of Oregon

August 1, 1911

Appeal from Circuit Court, Multnomah County; Earl C. Bronaugh Judge.

Action by Elmer Wallace against Mary E. McDaniel and others. From a judgment for defendants, except as to a certain equitable claim, both parties appeal. Modified and affirmed.

This is a suit in equity, involving the title to certain real property. The case originally was commenced by the defendants against plaintiff as an action for the possession of lot 11 and the west two feet of lots 12 and 13, block 15, on Williams avenue, Portland, Or.

It appears that Ida M. Wallace, the intestate, first married John Endecott, from whom she separated; there being no children as the issue of their marriage. On September 3 1903, John Endecott commenced a suit for divorce against Ida M. Endecott, his wife, in the circuit court for Umatilla county. On September 8, 1903, Mrs. Endecott appeared by her attorney and filed a demurrer to the complaint, which was, on the 12th day of September, 1903, overruled, and she declined to further plead. Thereupon the court heard the evidence and rendered a decree of divorce in favor of plaintiff, John Endecott, against defendant, Ida M. Endecott. On March 12 1904, at about 9:30 p.m., the plaintiff herein, Elmer Wallace, and Ida M. Endecott, the divorced wife of John Endecott, intermarried at Portland, Or., where they resided together as husband and wife until the death of the latter on October 19, 1905. A child, which died prior to the death of the intestate, was born as the issue of their marriage, and the intestate left neither father nor mother living.

The plaintiff filed a cross-complaint in equity, claiming title as the heir of his wife, Ida M. Wallace, formerly Ida M Endecott, the intestate, and the defendants claim to inherit the property in question as her sister and brothers and heirs. Plaintiff alleges that lot 11, block 15, was purchased on August 6, 1903, for $2,100, with the joint funds of himself and Ida M. Endecott, for the mutual benefit of both that thereafter plaintiff purchased and paid for the west two feet of lots 12 and 13 of block 15, and made improvements thereon; the total amount paid by plaintiff being $665.

The defendants make allegation that the intestate was their sister; that her marriage, on March 12, 1904, occurred prior to the expiration of the six months following the granting of the decree of divorce in the suit between her and John Endecott, and that her second marriage to Elmer Wallace, the plaintiff, was therefore void, and that on that account they (the defendants) are her lawful heirs, and entitled to the said real property.

The trial court rendered a decree in favor of defendants, except as to an equitable interest in the property, amounting to $665, in favor of plaintiff. Both parties appeal.

Ben C. Dey, Wm. D. Fenton, and R.A. Leiter, for appellants.

John Van Zante, A.H. Tanner, and C.M. Idleman, for cross-appellant

BEAN, J. (after stating the facts as above).

The statutes of this state, relating to marriage and divorce, provide as follows:

Section 501: "A husband or wife may maintain a suit against the other for dissolution of the marriage contract, or to have the same declared void, as provided in this chapter."

Section 515: "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, or if no appeal be taken, the expiration of the period allowed by this Code to take such appeal."

Section 550, subd. 5: "An appeal to the Supreme Court, if not taken at the time of the rendition of the judgment or decree appealed from, shall be taken by serving and filing the notice of appeal within six months from the entry of the judgment, order or decree appealed from. ***"

Section 502: "All marriages which are prohibited by law on account of consanguinity between the parties, or on account of either of them having a former husband or wife then living, or on account of either of them being one-fourth or more of negro blood, shall, if solemnized within this state, be absolutely void."

Section 7017, subd. 1, provides that a marriage is prohibited "when either party thereto had a wife or husband living at the time of such marriage."

It is contended upon the part of plaintiff that the marriage between himself and the intestate was valid for three reasons: (1) The marriage, even if within the six-month period, was not void, but only voidable; (2) the decree of divorce, for want of an answer, was rendered upon default; there was no appeal, and consequently section 515, L. O.L., has no application thereto; (3) the time allowed for appeal from the decree of divorce had expired, and no appeal was possible at the time the second marriage took place.

In the case of McLennan v. McLennan, 31 Or. 480, 50 P. 802, 38 L.R.A. 863, 65 Am.St.Rep. 835, where the plaintiff, a divorcee, contracted a marriage with a third person 22 days after her decree of divorce had been rendered, and prior to the expiration of the time for taking an appeal in the suit, it was held that her subsequent marriage was absolutely void, approving the case of Wilhite v. Wilhite, 41 Kan. 154, 21 P. 173, in which a second marriage, contracted by one of the parties with a third person about two months after the decree or divorce, from which there was a right of appeal, was held to be void. In State v. Leasia, 45 Or. 410, 78 P. 328, however, the decision was that, in view of the provisions of the statute, no appeal could be taken from a default decree, and that a final order of divorce, entered for want of an answer, operates to terminate at once the marriage relation, so that thereafter in a criminal case the woman is a competent witness against the man. In the suit in which the decree was rendered, which was in question in the case referred to, the defendant had failed to answer, but thereafter gave notice of appeal and filed an undertaking, as required by law. It was contended upon the part of defendant that the decree of divorce did not operate to sever the marital relations of the parties until finally determined upon the appeal; that under the existing conditions, at the time of the trial of the criminal action, the parties were to all intents and purposes husband and wife. Mr. Justice Wolverton, in this connection, remarks: "Whatever might be the effect of an appeal regularly and duly taken in suspending or intermitting the operation of the decree of the trial court while the appeal is pending, *** it is perfectly manifest that an attempted appeal, where none lies, could have no possible effect upon the finality of the decree sought to be revised. No appeal lies from a judgment or decree given by confession or for want of an answer; citing B. & G. Comp. § 548; Fassman v. Baumgartner, 3 Or. 469; Smith v. Ellendale Mill Co., 4 Or. 70; Trullenger v. Todd, 5 Or. 36; Rader v. Barr, 22 Or. 495 ; Askren v. Squire, 29 Or. 228 . Having failed to appear in the divorce proceedings, Leasia was wholly without the right of appeal, and any attempt that he might have made in that direction was ineffectual to carry the case to the higher tribunal, and, a fortiori, was unavailing to disturb the final effect of the decree itself, which terminated the marriage as to both of the parties. B. & C. Comp. § 515. There being no appeal, the decree became operative and finally effective when rendered, so that the objection is not well assigned; Mrs. Leasia not being the wife of Leasia at the time of the occurrence of the events about which inquiry was made."

At the institution of the suit by John Endecott against Ida M Endecott, the summons was served upon the district attorney, but the state filed no answer and made no appearance. The only party, therefore, who possibly had the right to appeal was Mrs. Endecott. In the consideration of this cause, it is unnecessary to determine what effect such a decree would have upon a subsequent marriage, entered into at an appreciable period prior to the expiration of the usual time for taking an appeal. Rather it is necessary to determine what construction should be placed upon section 515, L. O.L., prohibiting a subsequent marriage of either of the parties to the decree with a third person. For such purpose, as contradistinguished from providing a remedy upon appeal, this section is penal in character. These sections of our statute should receive a reasonable construction. "The general purpose or aim of a statute may be remedial, as where they provide punitive compensation to the injured party. But the provisions that enforce the wrong for which a penalty is provided, and those which define the punishment, are penal in their character and are construed accordingly. A statute may be remedial in one part and penal in another. And the same statute may be remedial for certain purposes, and liberally construed therefor, and at the same time be of such a nature, and operate with such harshness upon a class of offenders subject to it, that they are entitled to invoke the rule of strict construction." 2 Lewis' Sutherland, Stat. Construct. (2d Ed.) §...