[536] "Sec. 61. A subsequent marriage contracted by any person during the life of a former husband or wife ... , with any person other than such former husband or wife, is illegal and 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."--Act of Feb. 25: _Stat. and Amend. to the Codes_ (1897), 34.
"Sec. 91. The effect of a judgment decreeing a divorce is to restore the parties to the state of unmarried persons."--Act of March 30, 1874: _Amendments to the Codes_ (1873-74), 189; also in DEERING, _Codes and Stat. of Cal._ (1886), II, 31; POMEROY, _Civil Code_ (1901), 44.
[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.