Woodward v. Blake
| Decision Date | 21 July 1917 |
| Citation | 164 N.W. 156,38 N.D. 38 |
| Court | North Dakota Supreme Court |
Rehearing denied August 23, 1917.
From an order of the District Court of Wells County, Coffey, J respondents appeal.
Affirmed.
J. J Youngblood and John O. Hanchett, for appellants.
The appellee never became the lawful wife of decedent, because she married him within three months after decree of divorce was granted him from his then wife. That such marriage was in violation of the laws of the state and was void, and appellee never having been decedent's lawful wife, she is not now entitled to administration of his estate. Comp. Laws 1913, § 8657; Rev. Codes, 1899, § 2736; Laws 1901, chap. 70.
In states where the statute is penal in its nature, it is held that the incurring of the penalty provided by statute is the only consequence of a violation thereof by divorced parties, and that the new marriage is not void. Crawford v. State, 73 Miss. 172, 35 L.R.A. 224, 18 So. 848; Conn v. Conn, 2 Kan.App. 419, 42 P. 1007.
But there is a great distinction between such statutes and the statute of our state, and such difference has been observed by many courts. Park v. Barron, 20 Ga. 702, 65 Am. Dec. 641; McLennan v. McLennan, 5 Ore. 480, 38 L.R.A. 863, 65 Am. St. Rep. 835, 50 P. 802.
There can be no common-law marriage in this state. The marriage relation can only be entered into in this state in accordance with the provisions of the statute law of the state. Comp. Laws 1913, § 4360.
A marriage is dissolved only by the judgment of a court of competent jurisdiction, decreeing a divorce of the parties, and the effect is to restore them to the state of unmarried persons, except that neither shall marry again within three months from the date of the decree, and that therefore the divorce is not absolute until three months have expired. Re Smith, 4 Wash. 702, 17 L.R.A. 573, 30 P. 1059.
These parties were entirely incapable of contracting the marriage relation at the time they attempted to do so, and no marriage between them having been solemnized thereafter, it follows that they were never husband and wife. Lanham v. Lanham, 136 Wis. 360, 17 L.R.A. (N.S.) 804, 128 Am. St. Rep. 1085, 117 N.W. 787; Wilson v. Cook, 256 Ill. 460, 43 L.R.A. (N.S.) 365, 100 N.E. 222; Re Elliott, 165 Cal. 339, 132 P. 439; Hooper v. Hooper, 67 Ore. 187, 135 P. 205, 525; Eaton v. Eaton, 66 Neb. 676, 60 L.R.A. 605, 92 N.W. 995, 1 Ann. Cas. 199.
Under our law the decree of divorce does not dissolve the former marriage and restore the parties to a state of singleness until the expiration of three months. It was not necessary that this new statute should expressly declare that a marriage of either of the divorced persons within the time limit of prohibition should be null and void; for the old law expressly so provided, and was not repealed. Drummond v. Irish, 52 Iowa 41, 2 N.W. 622; Wilhite v. Wilhite, 41 Kan. 154, 21 P. 173; McLennan v. McLennan, 31 Ore. 480, 38 L.R.A. 863, 65 Am. St. Rep. 835, 50 P. 802; Tozier v. Haverhill & A. Street R. Co., 187 Mass. 179, 72 N.E. 953.
Tracy R. Bangs and Arthur L. Netcher, for appellee.
The cases cited by appellant mostly relate to statutes providing that neither of the divorced parties shall marry again, until after the expiration of the time allowed for appeal, and declaring such remarriage null and void, should they violate the statute. Such statutes are very different in their meaning and application from the statutes of this state, and the distinction has been very clearly made by many of the courts, including those courts whose decisions appellant has cited. McLennan v. McLennan, 31 Ore. 480, 38 L.R.A. 863, 65 Am. St. Rep. 835, 50 P. 802; Conn v. Conn, 2 Kan.App. 419, 42 P. 1006; Wilhite v. Wilhite, 41 Kan. 154, 21 P. 173.
These authorities cited by appellant all hold that a divorced person cannot enter into the marriage relation with a third person until the time for taking an appeal has expired. That is, they shall not be capable of contracting a new marriage with a third person. These statutes go directly to the ability and capacity of the parties to marry or to make such contract. These statutes declare such persons incapable of entering into the contract with a third person until the time for appeal has expired. In the other class of statutes we find the statutory prohibition penal in its nature. Under the first class we find the remarriage absolutely void, while in the other it is often held valid, although the party may be punished criminally for violating such prohibitory statute. Hooper v. Hooper, 67 Ore. 187, 135 P. 205, 525.
Our statute does not provide that the parties shall be incapable of contracting marriage; it does not provide that the exception is made for the purpose of appeal. Laws 1901, chap. 70; Sess. Laws 1911, chap. 183.
Appellee's position is that chapter 70 means that a judgment of divorce has the effect of an absolute divorce and completely severs the marital relationship that the three months' exception relates to the personal status of the parties interested, and not to their former marriage status; that a remarriage in violation of the three months' provision subjects the offending party to the penalty provided by statute. Rev. Codes 1899, §§ 6812 & 7029.
Our statutes define "absolutely void" marriages, and they nowhere refer to the class of cases to which this case belongs. Rev. Codes 1899, §§ 2722, 2723, 2731, 2732, Comp. Laws 1913, §§ 4359, 4360, 4368, 4369.
The main essentials of the common-law marriage are recognized in this state. Schumacher v. Great Northern R. Co., 23 N.D. 231, 136 N.W. 85; Mickels v. Fennell, 15 N.D. 188, 107 N.W. 53; 9 R. C. L. 503.
It was never the intention of the legislature that such marriages should be void. "What the legislature cannot do except by most positive enactment, courts should not do by strained construction. Luick v. Arends, 21 N.D. 614, 132 N.W. 353; Park v. Barron, 20 Ga. 702, 65 Am. Dec. 641.
"Statutes seemingly mandatory will sometimes be construed to be directory only when necessary to sustain the validity of a marriage not inexorably void." Mason v. Mason, 101 Ind. 25; Comp. Laws 1913, chap. 70, § 4379; Crawford v. State, 73 Misss. 172, 35 L.R.A. 224, 18 So. 848.
The Minnesota statutes single out and specify particularly those marriages which shall be absolutely void, but nowhere do they so declare upon cases like the one here presented, thus leaving a necessary inference that it was the intention that all other prohibited marriages should be voidable only. The Minnesota statutes are almost identical with our statutes. Rev. Codes 1899, §§ 2722 et seq; State v. Yoder, 113 Minn. 503, L.R.A.1916C, 686, 130 N.W. 10; State v. Walker, 36 Kan. 297, 59 Am. Rep. 556, 13 P. 279; Conn v. Conn, 2 Kan.App. 419, 42 P. 1006.
There is a great distinction between a statutory prohibition and a declaration of incapacity to contract. State v. Walker, supra; Bishop, Marr. & Div. § 283; Conn v. Conn, supra.
In this state we have absolute divorces,--nothing else. Hagert v. Hagert, 22 N.D. 296, 38 L.R.A. (N.S.) 966, 133 N.W. 1035, Ann. Cas. 1916B, 925; Tuttle v. Tuttle, 21 N.D. 506, 131 N.W. 460, Ann. Cas. 1913B, 1; Rindlaub v. Rindlaub, 19 N.D. 353, 125 N.W. 479; 14 Cyc. 578; Mahnken v. Mahnken, 9 N.D. 188, 82 N.W. 870.
The decree of divorce in this state fixes the personal and individual status of the parties, and has no relation to the former marriage. The parties are by the decree restored to the state of unmarried persons, excepting the prohibition against remarriage within three months. Strand v. Marin, 30 N.D. 170, 152 N.W. 280.
On August 15, 1904, an absolute decree of divorce was entered in the district court of Wells County, in an action then properly pending therein, divorcing Plinn H. Woodward from Kate Woodward. Thereafter on September 30, 1904 said Plinn H. Woodward was married to the petitioner, Blanche S. Woodward, at Minot, North Dakota. From the date of such marriage the said Plinn H. Woodward and the petitioner lived together as husband and wife--up to the death of said Plinn H. Woodward, which occurred on October 22, 1916. The petitioner thereupon applied to the county court of Wells county for letters of administration of the estate of said Plinn H. Woodward. And the three respondents, who are the children of Plinn H. Woodward by his first wife, filed an answer and cross petition, wherein they asserted that the marriage solemnized at Minot, North Dakota, on September 30, 1904, was and is wholly null and void for the reason that such marriage was prohibited by chapter 70 of the Session Laws of 1901, which reads as follows:
"The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons, except that neither party to a divorce may marry within three months after the time such decree is granted." Under the laws of this state "marriage is a personal relation arising out of a civil contract to which the consent of the parties thereto is essential, but the marriage relation may be entered into, maintained, annulled or dissolved only as provided by law." Comp. Laws 1913, § 4357.
The common-law marriage has not been recognized as valid in this state since July 1, 1890. See Schumacher v. Great Northern R. Co., 23 N.D. 231, 136 N.W. 85.
Section 4359, Compiled Laws, declares that marriages between certain near relations shall be absolutely void. And § 4360 Compiled...
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