Macedo v. Macedo

PULLEN, P. J. These parties were married in February, 1-932, and lived together until 1936, when they separated. Appellant herein, as plaintiff, then brought an action to annul the marriage upon the ground that at the time of marriage Mary Macedo had a husband then living.

It was true that at the date of the marriage between the parties hereto a former marriage between defendant herein and one Moreira was undissolved. An action for divorce had been instituted and an interlocutory decree had been entered September 10, 1930.

The complaint in this action seeking annulment was filed November 6, 1936. On November 16, 1936, defendant Mary Macedo procured the entry of the final decree in the Moreira ease. She then filed her answer in the annulment action, [389]alleging such entry of the final decree. The trial court refused to annul the marriage and held the same valid. This appeal followed.

Eespondent contends the trial court was correct and her marriage was valid by virtue of the retroactive operation of the final decree entered under the terms of section 133 of the Civil Code. This section, enacted in 1935, provides:

“Entry of Final Judgment Nunc Pro Tune: Effect of such Entry; Marriage Subsequent to Interlocutory Judgment Validated. Whenever either of the parties in a divorce action is, under the law, entitled to a final judgment, but by mistake, negligence or inadvertence the same has not been signed, filed or entered, if no appeal has been taken from the interlocutory judgment or motion for a new trial made, the court, on motion of either party thereto or upon its own motion, may cause a final judgment to be signed, dated, filed and entered therein granting the divorce as of the date when the same could have been given or made by the court if applied for. Upon the filing of such judgment, the parties to such action shall be deemed to have been restored to the status of single persons as of the date affixed to such judgment, and any marriage of either of such parties subsequent to one year after the granting of the interlocutory judgment as shown by the minutes of the court, and after the final judgment could have been entered under the law if applied for, shall be valid for all purposes as of the date affixed to such final judgment upon the filing thereof.”

The first point urged by appellant is that there never was a valid marriage between the parties hereto, the attempted marriage having been void from its inception, because as required by section 55 of the Civil Code “marriage is a personal relation arising out of a civil contract to which the consent of the parties capable of making that contract is necessary”.