Harrigan v. Harrigan

COOPER, C.

Appeal from the judgment denying plaintiff a divorce.

It appears from the findings that on the ninth day of September, 1894, the defendant willfully deserted the plaintiff, and that such desertion continued for more than one year, when defendant became insane, and was duly committed to the State Hospital for the Insane at Napa, where he has ever since remained. This appeal presents the sole question as to whether or not a divorce can be granted against an insane defendant whose insanity did not exist at the time the right to a divorce accrued. Under our laws marriage is a civil contract, entered into by competent parties. The right of either party to such marriage to obtain a divorce from the other is given by the code, on the ground, among others, of willful desertion continued for one year. (Civ. Code, secs. 92,107.)- The plaintiff, therefore, on account of the willful derelictions of defendant, had the right, given her by the statute, before defendant became insane, to procure a dissolution of the bonds of matrimony. Was this right taken away or suspended by reason of defendant’s subsequent insanity? In criminal cases,'although defendant was sane when the crime was committed, if he becomes insane before, or during the trial, the proceedings will be arrested and no judgment can be pronounced. This is upon

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the theory that an insane person is incompetent to make his defense. The law in its tender regard for the life and liberty of the subject, and in its mercy, will not pass sentence upon one who is so unfortunate as to have lost his reason, and who is thus unable to establish his innocence. As said by Coke, ' “A mad man is only punished by his madness.’’ While this is the rule in all civilized countries in regard to prosecutions for crime, it has no application to civil eases. Insane persons are incapable of entering into contracts while suffering under this great calamity. The law throws around them its protecting shield for the reason that, having no mind, they cannot enter into a contract. But in case of all contracts or liabilities incurred by parties while sane, the law affords a remedy, even though the party making such contract, or incurring such liability, has since become insane. This is recognized in the code, which provides for service of summons upon insane persons and for the appointment of a guardian