[486] For interpretation of the law regarding neglect to provide see Devoe v. Devoe, 51 Cal., 543; Washburn v. Washburn, 9 Cal., 475; Rycraft v. Rycraft, 42 Cal., 444.

[487] On habitual intemperance consult Mahone v. Mahone, 19 Cal., 626, 629; Haskell v. Haskell, 54 Cal., 262.

[488] Deering, Codes and Stat. of Cal. (1886), III, 31. The development of the law of California regarding divorce, as given in the text, may be traced in Stat. (1851), 186, 187; ibid. (1853), 70; Comp. Laws (1853), 371, 372; act of March 12, 1870: in Stat. (1869-70), 291; act of March 30, 1874: in Acts Amendatory of the Codes, 181-91; Pomeroy, Civil Code (1901), 40-62.

[489] For some account of the influence of the California Codes see Hepburn, Hist. Dev. of Code Pleading in America and Eng. (Cincinnati, 1897), especially 93 ff., 104 ff., 160.

[490] Compare the act of Feb. 7, 1865: in Acts (1864-65), 430, 431; and Comp. Codes and Stat. of Mont. (1895), 478-80.

[491] Rev. Stat. of Idaho (1887), 303-7.

[492] But a divorce is not allowed, under this provision, unless the insane person shall have been regularly and duly confined in an insane asylum of the state for at least six years immediately before the action: act of Feb. 4: Gen. Laws (1895), 11, 12. By an act of Feb. 14: Gen. Laws (1899), 232, 233, were added the words, "nor unless it shall appear to the court that such insanity is permanent and incurable;" and now it is sufficient if the previous confinement has been in an asylum "of a sister state," provided the plaintiff has been an actual resident for one year: ibid., (1903), 332, 333.

[493] Act of Jan. 16, 1864: in Laws of the Ter. of Idaho (1863-64), 615-18.

[494] Act of Jan. 9: Laws (1867), 69-71.

[495] Act of Jan. 13, 1875: Comp. and Rev. Laws of Idaho (1875), 639-41.

[496] Act of Jan. 15: in Gen. and Private Laws (1864), 19-26.

[497] Act of Jan. 12, 1866: Laws, Memorials, and Resolutions (1865-66), 13-16.

[498] If for a crime of the same grade as warrants such imprisonment in the territory, and if application be made during the term of confinement.

[499] Act of Jan. 10, 1867; in Gen. Laws (1866-67), 45-52.

[500] Act of Jan. 13, 1871: in Gen. Laws (1870-71), 414. In the same volume, curiously enough, the civil code of Jan. 12, 1866, including the divorce law of that year, as given in the text, is re-enacted; and so the act of Jan. 10, 1867, is entirely ignored. But the early legislation of Dakota is exceptionally bungling and confusing.

[501] Rev. Codes of the Ter. of Dak. (1877), 215, 216; also in Levissee, Ann. Codes (1883), II, 747-52. By the code of 1877 the term of wilful desertion, wilful neglect, and habitual intemperance was fixed at two years; but the one-year period was substituted in 1881: Act of March 1, Laws (1881), 66.

[502] Stat. of S. D. (1899), II, 1025-30; Rev. Codes (1903), 598-603.

[503] Act of March 6: Acts (1899), 95; but insanity as a ground is omitted in Laws (1901), 81, 82. There is no partial divorce in North Dakota; but, though a decree be denied, the court may provide for the maintenance of the wife and children by the husband: Rev. Codes (1895), 614. Cf. McFarland v. McFarland, 2 N. W. Rep., 269; Ross v. Ross, 10 N. W. Rep., 193.

[504] Rev. Codes of N. D. (1895), 611-15, 929; Stat. of S. D. (1899), II, 1489; I, 267.

[505] Since 1861 these marriages have thus been void without judicial proceedings; while those below the age of consent, or when there was want of understanding, or when obtained by fraud with no subsequent voluntary cohabitation, are void from the time a decree of nullity is pronounced. But a marriage shall in no case be adjudged a nullity, on the ground of being under age of consent, if the parties cohabited freely after reaching that age; nor the marriage of an insane person, if there be similar cohabitation after restoration to reason: act of March 28: Laws (1861), 96, 97; same in Comp. Laws (1900), 115.

[506] Cf. the act of Nov. 28: Laws (1861), 96-99; that of Feb. 15: Laws (1875), 63; and Comp. Laws (1900), 115-18. Partial divorce is not recognized; but the common law, as administered by the ecclesiastical courts, is a part of the law of Nevada, so far as not superseded by statute: Wuest v. Wuest, 17 Nev., 216. For the interpretation of extreme cruelty see Reed v. Reed, 4 Nev., 395; Gardner v. Gardner, 23 Nev., 207; Kelley v. Kelley, 18 Nev., 48.

[507] U. S. Stat. at Large, XXXI, 408-10; Laws of Alaska (1900), 243-46.

[508] Civil Laws of the Hawaiian Islands (1897), 715-21.

[509] Rev. Stat. (1889), IV, 2599; Stover, Code of Civil Proced. (1902), II, 1843. Cf. 5 Barbour, Chancery Reports, 117; 11 N. Y., 228; 34 N. Y., 643; 42 N. Y., 546; 2 Hun, N. Y. Supreme Court Reports, 241; 92 N. Y., 146.

[510] Van Voorhis v. Brintnall, 86 N. Y., 18; reversing s.c. 23 Hun, N. Y. Supreme Court Reports, 260; as summarized in Brightly, Digest of the Decis. of all the Courts of N. Y., II, 2531, 2532, where the later cases are cited. Cf. especially Thorp v. Thorp (1882), 90 N. Y., 602; and Moore v. Hegeman (1883), 92 N. Y., 521.

[511] H. J. Whitmore, "Statutory Restraints on the Marriage of Divorced Persons," Central Law Journal, LVII, 447; Smith v. Woodworth, 44 Barbour, Chancery Reports, 198.

[512] Bullock v. Bullock, 122 Mass. Reports, 3; Clark v. Clark, 8 Cushing, Mass. Reports, 385; Succession of Hernandez, 46 La. Ann., 962; 15 So. Rep., 461.

[513] The law provides that the penalties for "polygamy" shall not extend to persons marrying after having been lawfully divorced from the bonds of matrimony: Gen. Stat. of N. J., I, 1057. Cf. ibid., II, 1267 ff.

[514] Cf. the act of 1785: Carey and Bioren, Laws of the Com., III, 105; Pepper and Lewis, Digest, I, 1646, 1647.

[515] Cf. the act of February 3, 1832: Laws, 150, with Rev. Stat. of Del. (1893), 598.

[516] Rev. Laws of Ind. (1831), 214; Rev. Stat. (1838), 243; ibid. (1843), 606; ibid. (1852), II, 237; ibid. (1896), I, sec. 1048; Burns, Ann. Stat. (1901), I, 1059.

[517] Laws of Ind. (1873), 108, 109; Rev. Stat. (1896), I, sec. 1030. This section applies only to parties "constructively" summoned: Sullivan v. Learned, 49 Ind., 252. The general policy of the law is against disturbing divorces granted: McJunkin v. McJunkin, 3 Ind., 30; McQuigg v. McQuigg, 13 Ind., 294.

[518] Act of Jan. 26, 1818: Laws of Ind. (1818), 228.

[519] Rev. Laws of Ind. (1824), 157.

[520] Act of Jan. 17: Laws of Ill. (1825), 169.

[521] The act of June 1, 1827: Rev. Code (1827), 181, allows the injured person to obtain a dissolution of the marriage contract; but neither this nor any subsequent statute seems expressly to forbid the defendant to remarry.

[522] Hurd, Rev. Stat. (1899), 565.

[523] Ter. Laws of Mich., I, 496; see also act of April 12, 1827: ibid., II, 363-66. An act of this last date (ibid., II, 543), for the punishment of crime, exempts persons marrying again after divorce from the pains of bigamy, provided they may do so by the terms of the decree or by those of the law where the divorce was granted. The act of June 28, 1832 (ibid., III, 931, 932), is silent as to remarriage.

[524] Howell, Gen. Stat. (1890), III, 3605; Miller, Comp. Laws (1899), III, 2666.

[525] By the act of Jan. 24, 1855, the guilty party is prohibited from remarrying: Laws of Ia. (1854-55), 112. The restriction was dropped in 1858: Laws (1858), 97, 98, 236: Ann. Code (1897), 1135-47.

[526] Stat. of Kan. (1855), 312.

[527] Gen. Laws of Kan. (1859), 385. This and the later acts to 1881 are silent as to remarriage.

[528] Laws of Kan. (1889), 145; same in Comp. Laws of Kan. (1897), II, 276: "Every decree of divorce shall recite the day and date when judgment was rendered in the cause, and that the decree does not become absolute and take effect until the expiration of six months from said time." Cf. the act of March 5: Laws of Kan. (1881), 229-31, where the six-months' prohibition first appears.

[529] The Nebraska law is peculiar in that, in addition to the general prohibition of marriage in six months, it especially forbids the defendant in error or appellee to marry again during the pendency of proceedings in error or on appeal under the penalties prescribed for bigamy: Laws of Neb. (1885), chap. 49, pp. 248, 249; Comp. Stat. of Neb. (1901), 582. See Codes and Stat. of Ore. (1902), I, 280, 296; Codes and Gen. Laws (1892), I, 458; being the same as act of Oct. 11, 1862: Organic and Other Gen. Laws of Ore., 1843-72, 211, 218; Ann. Codes and Stat. of Wash. (1897), II, 1599; Laws (1893), 225.

[530] Laws of N. D. (1901), 81, 82; Laws of Idaho (1908), 10, 11.

[531] Laws of Col. (1893), 240, 241; Mills, Ann. Stat. (1897), III, 441, 442.

[532] "But upon application of such divorced person, any court of record or presiding judge thereof, who granted the divorce, ... may authorize" marriage within the year: Acts of Wis. (1901), 369.

[533] Complete Codes and Stat. of Mont. (1895), 480.

[534] Stat. of S. D. (1899), II, 1025, 1028; Rev. Codes (1903), 602. This principle was adopted by the territorial assembly: Levissee, Ann. Codes (1884), II, 750. Except for a brief term in 1866, the earlier territorial laws allow entire freedom of remarriage: see act of Jan. 12, 1866: Laws, Memorials, and Resolutions (1865-66), 14, forbidding the guilty adulterer to remarry during the lifetime of the innocent spouse; but in the next year this was replaced by a new law allowing full liberty: Act of Jan. 10, 1867: Gen. Laws, Memorials, and Resolutions (1866-67), 45-52.

[535] U. S. Stat. at Large, XXXI, 408-10, 415.

[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.

[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.

[545] Rev. Stat. of Del. (1893), 598. "In all other cases a divorce decreed in any other state or country" is valid: ibid., 598.

[546] Gen. Stat. of N. J. (1896), II, 1273; being act of March 7, 1889: Pub. Laws, 48. This law has existed in nearly the same form since 1820: see act of Feb. 16, 1820: Laws of the State (1821), 667.

[547] Gen. Stat. of N. J. (1896), II, 1273; being act of May 11, 1886: Pub. Laws, 345.

[548] Rev. Laws of Ind. (1831), 213.

[549] Ibid. (1838), 243.

[550] Gen. Laws (1849), 62.

[551] Rev. Stat. (1852), 234: of "which bona fide residence the affidavit of the petitioner shall be prima facie evidence."

[552] Laws of the State (1859), 108.

[553] Act of March 10: Laws (1873), 109; same in Rev. Stat. (1896), I, sec. 1031.

[554] Ter. Laws of Mich., I, 495.

[555] Ter. Laws of Mich., III, 931.

[556] Rev. Stat. (1838), 337; Acts (1844), 74.

[557] Pub. Acts (1899), 326, 327. When the order for appearance is served outside the state, the law requires that the fact of service be proved by affidavit before a justice or notary whose legal character and signature must be attested by the certificate of a court of record. See the earlier act of 1895: Pub. Acts (1895), 371; and cf. Howell, Gen. Stat., II, 1624; Miller, Comp. Laws (1899), III, 2657.

[558] Cf. the act of June 20: Laws of Pa. (1893), 471; also in Pepper and Lewis, Digest (1896), I, 1638, 1639; and the act of Sept. 19, 1785: Laws of the Com. of Pa. (1803), III, 105.

[559] Bates, Ann. Stat. of Ohio (1897), II, 2805. The law of 1827 requires two years' residence on the part of the plaintiff: Chase, Stat., III, 1581.

[560] Cf. act of June 1, 1827: Rev. Code of Ill. (1827), 182; Hurd, Rev. Stat. of Ill. (1898), 632: being the same as ibid. (1845), 196.

[561] Cf. Rev. Stat. of Minn. (1851), 274; Gen. Stat. (1894), I, 1268, 1269.

[562] The development of the Wisconsin law of residence may be traced in Stat. of the Ter. (1838-39), 140; Rev. Stat. (1849), 395; ibid. (1858), 623-28 (in which the clause referring to the wife as plaintiff first appears); Ann. Stat. (1889), I, 1368.

[563] The petition for divorce "must state that the plaintiff has been for the last year a resident of the state, specifying the township and county in which he or she has resided, and the length of such residence therein after deducting all absences from the state; that it has been in good faith and not for the purpose of obtaining a divorce only"; and "in all cases it must be alleged that the application is made in good faith and for the purpose set forth in the petition."—Ann. Code of Ia. (1897), 1137; same in Code (1873), 339. See also act of Dec. 29, 1838: Laws (1838-39), 179, 180, first fixing the period of one year's previous residence.

[564] "Provided, further, that such suit shall only be brought in the county in which such plaintiff or defendant resides, or where such defendant last resided."—Mills, Ann. Stat. of Col. (1897), III, 437, 438; being the act of 1893: Laws, 239. Cf. the original act in Laws of Col. (1861-62), 360, 361, fixing the one-year term.

[565] Laws of Kan. (1897), II, 273; being same as Gen. Stat. (1868), 757. Cf. original act of 1855: Stat. (1855), 311. In 1859 the term of residence was reduced to six months, but the one-year period was restored the next year: Laws of Kan. (1859), 385; ibid. (1860), 108. Now the petitioner must be a resident of the county of the action.

[566] See the preceding subsection.

[567] Comp. Codes and Stat. of Mont. (1895), 482. See Acts (1864-65), 430.

[568] Ann. Codes and Stat. of Wash. (1897), II. 1596; Stat. (1854), 405-7. The term was reduced to three months in 1864, but restored to one year in 1866: Stat. (1864), 13; Stat. (1865-66), 89, 90.

[569] When the marriage was solemnized in the state, it is sufficient if the plaintiff be an inhabitant thereof at the commencement of the suit. If not solemnized in the state, both parties must be inhabitants at the commencement of the suit, and the plaintiff for one year before (act of 1862). The plaintiff must be an inhabitant of the state at the commencement of the suit and for one year before; "which residence shall be sufficient to give the court jurisdiction, without regard to the place where the marriage was solemnized, or the cause of suit arose" (act of 1865): Codes and Gen. Laws (1902), I, 277. By the act of 1853, in force till 1862, the term of residence was fixed at six months: Gen. Laws. (1852-53), 49-51.

[570] Stat. and Amend. to Codes of Cal. (1891), 52. The plaintiff must be a resident of the state one year and of the county three months. Between 1851 and 1891 the term was six months: Act of March 25: Stat. of Cal. (1851), 186, 187.

[571] Acts (1899, Feb. 3), 94: The plaintiff must have been a resident of the state in good faith for twelve months, and be a citizen of the United States or have declared his intention to become such citizen. By the earlier law, as at the close of the territorial period, the term of residence was ninety days: Rev. Codes of N. D. (1895), 614.

[572] Laws of Wyo. (1901), 4.

[573] U. S. Stat. at Large, XXXIII, 944. The period is two years in Hawaii: ibid., XXXI, 150.

[574] Comp. Stat. of Neb. (1901), 577; Laws (1856), 155.

[575] Rev. Stat. of Idaho (1887), 305; Laws (1867), 69. The law of residence took its present form in 1867: but the provision of 1864, Laws (1863-64), 615, 616, is identical with that of Nevada quoted in the text.

[576] Comp. Laws of Nev. (1900), 115. Cf. Laws (1861), 96, 97; and Laws (1875), 63.

[577] Stat. of S. D. (1899), II, 1029; Rev. Codes (1903), 602. The territorial law of 1883: Levissee, Ann. Codes of Ter. of Dak. (1884), 751, requires a residence of ninety days.

[578] In California and Montana summons and publication in divorce suits are given under the general provisions for civil actions: Pomeroy, Codes and Stat.: Civil Proced. (1901), secs. 410 ff.; Codes and Stat. of Mont. (1895), 782, 796, 797. This is, of course, not inconsistent with Sharon v. Sharon (1885), 67 Cal., 185, ruling that an action for divorce is a case in equity under the clause in the constitution conferring appellate jurisdiction on the supreme court.

[579] The statute of Wisconsin requires the proceedings to be as in "courts of record" so far as practicable: Ann. Stat. (1889), I, 1362.

[580] In New York, for instance, the order for publication must direct that the summons be published "in two newspapers, designated in the order as most likely to give notice to the defendant, for a specified time, which the judge deems reasonable, not less than once a week for six successive weeks;" and unless the judge is satisfied from affidavits presented that the defendant's residence is unknown, it must also require that copies of the summons, complaint, and order be mailed to him at a specified place: Birdseye, Rev. Stat. (1896), I, 18. The laws of Ohio and Kansas are similar: Bates, Ann. Rev. Stat. of Ohio (1897), II, 2805; Laws of Kan. (1897), II, 273. By the statute of Pennsylvania, if the adverse party is not found, the court may issue an alias subpoena, and trial may be set for a later term. If a second time personal service cannot be had, notice must be "published in one or more newspapers printed within or nearest to the said county for four weeks successively" prior to the first day of the next term: Pepper and Lewis, Digest (1896), I, 1642. Colorado has a careful provision. See also Civil Laws of the Hawaiian Islands (1897), 716-18; and the new law of New Jersey: Acts (1903), 122, 123.

[581] By Laws (1899), 1471, 1472, on application of either party, when the assigned cause is adultery, a jury must be called; and in other cases it may be empaneled.

[582] Mills, Ann. Stat. of Col. (1897), III, 438; Ann. Codes and Stat. of Wash. (1897), II, 1600.

[583] Rev. Stat. of Ind. (1896), I, sec. 1038. An emergency act of 1901 makes provision for counties of 100,000 inhabitants; that is, for Marion county, containing Indianapolis. Where no bona fide counsel for the defendant is entered in the appearance docket, the prosecuting attorney is to enter his name therein, and to resist the petition on behalf of the state. Any attorney, other than the prosecuting attorney, appearing for the defendant, if so ordered by the court, must file a written authority executed by the defendant: Laws (1901), chap. 151, pp. 336, 337. In substance this requirement as regards the prosecuting attorney is made general for the state by an act of 1903: Laws, 393, 394.

[584] Mills, Ann. Stat., III, 438; Laws (1893), 238, 239.

[585] Codes and Gen. Stat. (1892), I, 664 (act of Oct. 11, 1862); Codes and Stat. (1902), I, 456.

[586] Ann. Codes and Stat. (1897), II, 1600.

[587] This is the duty of the district attorney in Idaho, and of the county attorney in Utah, when the ground of the petition is the alleged insanity of the defendant: Gen. Laws of Id. (1895), 12; Laws of Utah (1903), 39, 40; and of the prosecuting attorney in Michigan, when there are children under fourteen years of age whose interests require his intervention: Howell, Gen. Stat., III, 3605; Miller, Comp. Laws (1899), III, 2665.