TEMPLE, J.,
dissenting.—I dissent. It may be conceded that the marriage was valid if plaintiff was, in the full sense of the term, an unmarried woman at the time. She was formerly the wife of Robert M. Smith, but obtained a decree of divorce against him on the nineteenth day of August, 1897. The decree was absolute in form. It is declared in section 91 of the Civil Code that such a decree restores the parties “to the state of unmarried persons.” The decree has not been set aside or suspended, nor has any appeal been taken therefrom. It is contended, however, that this did not qualify her to marry again for one year after its rendition, unless she remarried her former husband.
This contention is based largely on section 61 of the Civil Code. That section, so far as material here, reads as follows: “A subsequent marriage contracted by any person during the life of a former husband or wife of such person, with any person other than such former husband or wife, is illegal and
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void from the beginning, unless: 1. The former marriage has been annulled or dissolved; provided, that in case it be dissolved, the decree of divorce must have been rendered and made at least one year prior to such subsequent marriage. ’ ’
In addition, section 63 of the Civil Code makes valid in this state any marriage contracted without the state which is valid where entered into. Section 90 declares that marriage is dissolved,—“1. By the death of one of the parties; 2. By a judgment of divorce.”
Section 91 declares that the effect of a judgment decreeing a divorce is to restore the parties to the condition of unmarried persons.
The question here is whether the proviso in section 61 becomes in effect a part of every decree of divorce thereafter pronounced. That it must be so considered is, I think, quite obvious. Such is the natural effect of such a statute, and such are the decisions in all analogous cases. And it matters not how the statute is worded, provided it appears that it was intended that the decree of divorce should not at once restore the parties to the condition of unmarried persons. Nor is there any force in the suggestion that they are expressly authorized within the period to marry each other as implying that they had been divorced. The statute is a limitation upon the effect of the decree and recognizes the fact that for many purposes the parties are divorced when the judgment is rendered.
A judgment in a divorce proceeding is in some respects peculiar. For some purposes, it is very desirable that it should take effect at once. If there are children, their custody and care should be at once provided for. There are also special reasons why it should not take effect so that the parties can remarry, except with each other, so long as the judgment is subject to review and to be reversed. It would certainly be a scandalous condition of things if one could lawfully have two wives or two husbands. Many divorce judgments are procured upon substituted service of summons. In such case the court may, and upon a proper showing should, allow the defendant to answer to the merits within one year after the rendition of the decree. (Code Civ. Proc., sec. 473.) Such permission would vacate the decree, and the parties would surely not be unmarried persons.
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And again, when this proviso was adopted a judgment was subject to appeal for one year. During all that time, and if an appeal were taken, until the appeal was determined, the case was pending and undetermined, except for certain limited purposes. If the parties are allowed to marry, except each other, within that time, the same scandalous conditions might occur which I have specified. It would transpire that the new spouse, in case of a marriage, would have been taken on condition. Any civilized people would desire to avoid such possibilities.
But it matters not what the intention of the legislature may have been, except as manifested in the text of the statute. It is admitted that the statute renders the parties incapable of marrying during the period within this state. If that be so, the provision has the precise effect in this state as though it were a valid clause in the decree. In other words, as to this state, it is to be deemed a part of every decree of divorce. There is no authority or precedent for a different construction as to the effect of the decree within and without the state. To so hold would work partial defeat of the legislative policy, which every one must admit is in the interests of good morals. If the remedy is not as complete as it might have been, that will not affect the execution of the law. That such was the legislative intent is obvious. Similar statutes have long existed in other states. (2 Nelson on Divorce and Separation, par. 582a.) Two classes of statutes upon this matter are discussed in the authorities: 1. Those which prohibit marriage within the limited period, but do not declare the second marriage void. It is held that such statutes are penal and have no extraterritorial effect. In such a case, therefore, a marriage in another state, which is lawful there, will be held to be valid in the state of the domicile and where the decree was obtained.
The other class of statutes are like ours in reference to this matter. They declare the subsequent marriage void from the beginning, unless the parties shall have been divorced for a specified period. In such cases a subsequent marriage within the period is held void, although entered into in another state. This is upon the ground that the parties are not unmarried persons, and therefore not capable of lawfully contracting marriage anywhere. Under such conditions it would follow
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as a matter of course that the statutory provision is to he deemed as qualifying the effect of every decree of divorce thereafter rendered.
This question is so fully and so well considered in
McLennan
v.
McLennan,
31 Or. 480,
1
that it is only necessary to refer to that ease for a full statement of the argument. The statute of Oregon simply declared what I conceive to be the effect of several sections of our Civil Code, construed together, with the difference that the period during which the parties were declared incapable of marriage was for the time to take an appeal, and during an appeal pending, if one were taken. The parties married in the state of Washington during the period of the prohibition. It was held that the divorce was only partial, and would not be complete until the expiration of the limited period. The distinction between this class of eases and those cited by appellant is clearly stated. To the same effect are the cases of
Wilhite
v.
Wilhite,
41 Kan. 159, and
Conn
v.
Conn,
2 Kan. App. 419. (See, also,
Calloway
v.
Bryan,
51 N. C. 570;
Cox
v.
Combs,
8 B. Mon. 231.)
In Washington the statute directs the Court to order a complete divorce to both parties, and that “neither party shall be capable of contracting marriage with a third person until,” etc., the period for an appeal shall have expired. This statute was construed in
In re Smith’s Estate,
4 Wash. 702, and that case is interesting in view of some arguments here, because it attempts to reconcile the limitation upon the effect of the decree with the other provision that the court shall grant a complete divorce. The divorce must be a full divorce and not a divorce
a mensa,
but the judgment will not have full effect until the expiration of the period prescribed. Before the codes partial divorces had been allowed in this state. This was changed by the codes, and hence the emphatic language as to the effect of the decree. When the decree takes complete effect it shall be a full divorce.
Many cases are cited by appellant which are supposed by appellant to hold a contrary doctrine. They are all, I think, cases construing a statute which merely prohibited the marriage, or which directly prescribed a penalty. It is universally held that such laws have no extraterritorial force. All admit that the state may declare certain marriages void as opposed
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to its policy or to good morals, and that such laws will be upheld and such marriages will be held void, wherever contracted. This is declared to be the rule in
Commonwealth
v.
Lane,
113 Mass. 458.
1
Chief Justice Grey said two classes of marriages were not allowed any validity,—one which was deemed contrary to the law of nature, and one which the legislature declares shall not be allowed any validity because contrary to the policy of our laws. This view was also taken in
Brook
v.
Brook,
9 H. L. Cas. 193. The case has been much criticised, but it seems to me the criticism could much more properly be aimed at the singular act of Parliament which the court was called upon to construe. It is clear that the common ideas of Christendom as to what should constitute incest are not binding upon any nation. It may adopt its own view as to what marriages are incestuous. It was not the fault of the court that the statute declared the same relation incestuous under some circumstances and lawful under others. The statute in effect declared that certain marriages were opposed to good morals and to the policy of England, and the court sustained the law, while admitting that such marriages would be held good generally throughout Christendom. The principle is admitted everywhere. Furthermore, whatever may be said upon this subject will not affect the position here taken, that at the time of the Eeno marriage the plaintiff was not an unmarried person.
My associates attach great importance to certain decisions of this court which hold that the parties are completely divorced as soon as the decree is rendered. It was because of these decisions that section 61 was amended. The evil effect of these cases is the evil at which the amendment was aimed. This is admitted, but my associates think it is only effectual to prevent these too hasty marriages within this state. The whole principle for which I contend is admitted by this position. The statute is practically made a part of each decree, but its effect is illogically limited to prohibiting marriages within the state, while admitting that the intent was to prohibit them everywhere. For it is said that by going out of the state they sought to evade our laws, and that an agreement to marry, made within the period during which marriage was prohibited, is against public policy, although the parties did
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not agree to marry within that period, nor within this state. The legislature then desired to prohibit such marriages between persons resident in this state, wherever they might' be solemnized. Otherwise, to marry in Nevada is not an evasion of our laws, and is not prohibited by the policy of the state. If any reasonable construction will make the statute effectual, such construction should be given rather than one which will defeat the evident object of the legislature. The construction I have suggested is that which has been given to statutes defining the effect of contracts. They are construed as entering into and becoming a part of the contract. It is said the statute is penal, and its effect must therefore be limited. If I have correctly construed it, it is no more penal than is the statute which declares that other married persons are not competent to contract matrimony.
I cannot bring myself to believe that the order setting apart a homestead to plaintiff is an adjudication which precludes an inquiry into the validity of the marriage. Admitting that the notice required and given for the probate of a will, or the grant of administration, brings all interested parties before the court, still the law gives them no right or opportunity to be heard in the matter of setting apart a homestead. The probate law expressly declares that the order of distribution shall conclude all interested parties. To obtain this a special notice is required, and all persons may come in and make known their claims, and all who show themselves interested may contest the heirship of any claimant, including the person claiming to be a widow, who under our law is an heir. It cannot be that the
ex parte
order setting apart a homestead, where there is no provision made for a hearing at all, was intended to conclude upon final distribution other claimants who are thus brought in that they may be then heard upon the matter.
But the contention ignores the nature of a proceeding
in rem.
There the court gets jurisdiction by having possession of the thing, and only has jurisdiction to dispose of the thing. Necessarily, where no one appears, and then as to those who do not appear, and actually raise a contest, the court can make no finding or enter any judgment which binds any one except in the disposition of the thing seized and possessed by the court or its officers.
1
65 Am. St. Rep. 835.
1
18 Am. St. Rep. 509.