[537] In Abbie Rose Wood v. Estate of Joseph M. Wood, filed in the superior court of San Francisco, June 14, 1900, Judge Belcher decided that the marriage on Jan. 1, 1898, in Reno, Nev., of a person divorced in California, Aug. 19, 1897, the former husband still living, was not valid. He relies upon the words of nullity in the amendment of 1897; and the fact that the person went to another state solely for the purpose of getting married while still retaining her domicile in California. "Section 61, Civil Code, contains no penal clause, as stated; but it does contain words of nullity, and words which suspend, as to third persons, the operation of the decree ... ; and these cannot be avoided by merely invoking another jurisdiction for that purpose. The two sections (61 and 91, C. C.) are to be read together, and, so read, their interpretation and meaning are free from either uncertainty or ambiguity. The law of the domicile is invoked, and the law of the domicile controls. No other jurisdiction can relieve against it."—See San Fran. Law Journal (July 2, 1900), 1.
In a case decided on Dec. 10, 1900, Judge Trout, of the superior court of San Francisco, takes the same position as Judge Belcher.
On the other hand, on Dec. 4, 1900, Judge Hebbard, of the same court, in Adler v. Adler, maintains the validity of a similar Reno marriage. He holds that the California law "is in restraint of marriage," since it fixes an arbitrary prohibitory period. "We may imagine the reason which induced the passage of the section, by an examination of the law of the State of Oregon upon the same subject. In that state there is no fixed prohibitory period, but the law is to the effect that, pending an appeal from a decree of divorce, if one be taken, and, if not, during the time in which it may be taken, the parties shall be incapable of contracting marriage with a third person. In California an appeal from a final judgment must be taken in six months; an appeal from an order granting or refusing a new trial in sixty days. The great majority of divorce cases go to judgment upon the default of the defendants, and in such cases there can be no appeal upon the merits of the cause. When no appeal can be taken, or when the time for appeal has gone by and none taken, why compel the parties in the case to abstain from matrimony for the remainder of the year thereafter? The proportion of divorce decrees appealed from is infinitely small, and therefore the prohibition in section 61 discriminates against the many, for the protection of the few; it is an arbitrary law." He relies upon Pearson v. Pearson, 51 Cal., 120 (1875), construing sec. 63 of the Civil Code to the effect that "all marriages contracted without this state, which would be valid by the laws of the country in which the same were contracted, are valid in this state."—San Fran. Law Journal (July 16, 1900), 1.
[538] See the Estate of Wood, 137 Cal. (1902), 129 ff., where Reno marriages are held valid, three justices dissenting.
[539] In Willey v. Willey, 22 Wash. (Jan. 27, 1900), 115-21. The courts of Oregon have taken the opposite view, holding such marriages of residents of Oregon contracted in another state absolutely void under the statute: McLennan v. McLennan, 31 Ore. (1897), 480.
[540] Acts of March 2 and 16, 1903, Stat. and Amend. to the Codes, chaps. lxvii, clviii.
[541] It has already been so declared by Judge Rhodes in the superior court of Santa Clara county.
[542] Compare Moore v. Moore, 8 Abb., N. C., 171-73; Colvin v. Colvin, 2 Paige, 385-87, denying the right of remarriage in such cases; with Moore v. Hegeman, 92 N. Y., 521-29, where the question is left undecided.
[543] Stover, Code of Civil Proced. (1892), II, 1640.
[544] Rev. Stat. of Del. (1893), 598; being the act of 1891: Laws, XIX, chap. 243, p. 480.