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marriage, entered into between British sub- | domicil should be invalid; and it was held jects in a country where the marriage was that, as the divorce was granted to one who not forbidden, was absolutely void in Eng- had never obtained a bona fide domicil, the land. We consider these cases inconclusive. court of South Dakota never acquired jurisMost of them, if not all, fall within a well- diction, and hence the due faith and credit recognized exception to the general rule clause of the Constitution did not require laid down above, namely, that, if a marriage the enforcement of the decree in Massais odious by the common consent of nations, chusetts against the public policy of that or if its influence is thought dangerous to state as expressed in its statutes. It is to the fabric of society, so that it is strongly be noticed that both the first and second against the public policy of the jurisdiction, marriages involved in that case took place it will not be recognized there, even though in Massachusetts. And as to the invalidity valid where it was solemnized. Thus a po- of the divorce, it is clear that different conlygamous marriage, although valid and siderations apply to the determination of binding in the country where it was con- the validity of divorces than to the validity tracted, would probably be denied validity of marriages procured in evasion of the laiv in all countries where such unions are pro of the domicil. Bishop, supra, $S 836, 837. hibited. See Re Bethell, L. R. 38 Ch. Div. Coming now to the case in hand, it re220. Probably the rule would be the same quires no argument to show that, even if in case of an incestuous marriage, although the marriage might have been void if valid in the place where contracted. See solemnized in this state, it is nevertheless Bishop, supra, $8 858 et seq.; Com. v. Lane, not such a union that it can in any sense be 113 Mass. 458, 463, 18 Am. Rep. 509. The considered so subversive of good morals, or cases cited from Louisiana, North Carolina, so threatening to the fabric of society, as to and Virginia may be explained, then, on the fall within the exception to the general rule ground that the tendency of such unions in regarding foreign marriages. In other those states was considered destructive of words, if valid in Massachusetts, it is equalsociety; and their apparent conflict with ly valid here. As to its validity in MassaMedway v. Needham rests, not upon any chusetts, no authorities were cited by counconflict of opinion regarding the general sel, and we have not succeeded in discovering principle governing foreign marriages, but any Massachusetts statute or decision which only upon the different conceptions of the would tend to show that the marriage is not courts regarding the importance of the pub- valid there. Indeed, the only authorities lic policy forbidding such marriages. The we have found which seem to bear upon the first two cases cited by counsel for the re- point look the other way. In Parton v. spondent guardian are harder to dis- Hervey, 1 Gray, 119, 121, the facts were in tinguish, although we think that here, some respects similar to those in the case at again, the difference in the result is attrib- bar. The petitioner had married a female utable to the same difference in the concep. infant of the age of thirteen years, with the tion of the public policy regarding such free assent of said in fant, but without the marriages. But if the cases really are in knowledge or consent of her mother, whe conflict, we believe that the current of au was her only surviving parent. The latter, thority is in favor of the principle already claiming that the marriage was invalid enunciated. It is true that in the important without her consent, locked her daughter case of Brook v. Brook, 9 H. L. Cas. 193, de up, and refused to allow her husband to cided by the House of Lords, a contrary have the custody of her person. The petiposition was taken, and the Massachusetts tioner was allowed a writ of habeas corpus

were expressly disapproved. That against the mother. The court says on page case, however, although of great weight, 122: “But in the absence of any provision has been considerably criticised, and is be declaring marriages not celebrated in a prelieved to be contrary to the weight of Ameri- scribed manner, between parties of can authority. For a learned criticism of certain ages, absolutely void, it is held that the case, see the opinion of Gray, Ch. J., in 111 marriages regularly made according to Com. v. Lane, 113 Mass. 467, et seq., 18 Am. the common law are valid and binding, alRep. 509.

See also Bishop, supra, § 827. though had in violation of the specific reguThe case of Andreus v. Andreus, 188 U. S. lations imposed by statute.” And in Mil14, 47 L. ed. 366, 23 Sup. Ct. Rep. 237, has ford v. Worcester, 7 Mass. 48, 54, 55, Parno bearing upon the question at issue. In sons, Ch. J., said: “When a justice or that case the only question was whether minister shall solemnize a marriage between the court of Massachusetts constitutionally parties who may lawfully marry, although could refuse to recognize a divorce granted without publication of the banns of marby the court of South Dakota, in view of a riage, and without the consent of the Massachusetts statute providing that a di- parents or guardians, such marriage would vorce obtained in fraud of the laws of the unquestionably be lawful, although the of

cases

or

ficer would incur the penalty of £50 for a guardian of the person and estate of a marbreach of his duty.” See 2 Parsons, Contr., ried woman could properly be appointed on 9th ed. p. 93. In the absence, then, of any the ground that she, for want of discretion showing that Mr. Chace was either an in managing her estate, was likely to bring idiot or lunatic at the time of the marriage, herself to want. It was held, in a learned we are of opinion that the marriage in opinion by Brayton, J., that such an apMassachusetts was valid.

pointment was valid. On page 250 he says: It is argued by counsel for the petitioner "Neither do we think that it is any sufthat, as there was at least the form of a ficient objection to the decree that the marriage in this case, it cannot be collat- guardianship of the property is coupled erally attacked, but must, for the purposes with the guardianship of the person. It is of this proceeding, be considered valid and not necessary, in the exercise of any of the binding. As the respondent's counsel took guardian's powers, to invade any of the no notice of this point in his brief, however, rights of the husband, either in the disposiand relies chiefly upon the invalidity of the tion and control of the property of the wife, marriage, we prefer to express no opinion or the custody of her person. Whatever upon that question, but to decide this control of her person may be necessary for branch of the case upon the ground selected her protection and for the assertion of by the respondent for his defense.

her just rights must necessarily be given Having, now, as we think, established the to the guardian, but this may be, and validity of the marriage, we proceed briefly would be, in subordination to

every to inquire whether the facts of the case war- just right of the husband. The custody of rant the issuing of the writ.

her person would not be taken from him, In the first place, it is clear that the hus- unless for her protection.” In view of this band or wife of a person illegally restrained decision, the remainder of the case is free of his liberty is a proper person to petition from difficulty, and may be decided without for a writ of habeas corpus. Parton v. Her questioning the authority, either of the textrcy, 1 Gray, 119, 121; 15 Am. & Eng. Enc. writers cited by petitioner, or of the de. Law, 2d ed. p. 181, and cases cited; Id. p. cision last cited. If the marriage termi193. As to the effect of the marriage upon nated the guardianship of the person, the the status of guardian and ward, it is petitioner is obviously entitled to the relief strenuously argued on the part of the peti- she seeks. If the guardianship is not thus tioner that the marriage relation is incon- terminated, yet, under our own decision, the sistent with the guardianship, and that, as control exercised by the guardian must be marriage is paramount to any other social in subordination to every just right of the status, the guardianship, at least of the per- wife. It needs no argument nor citation of son of Mr. Chace, terminated upon his mar authority to show that, in the absence of riage. In support of this proposition he very exceptional circumstances, a wife is cites number of authorities of great entitled to the society of her husband, free weight, including Woerner, American Law from the restraint of any third person. No of Guardianship, 335, 336; Schouler, Dom. such circumstances appear in this Rel. 5th ed. $ 313; Reeve, Dom. Rel. 4th ed. And, taking the facts above recited as true, 409; and 2 Kent, Com. 12th ed. *226. None as they must be assumed to be in the of these authorities, however, cites any de absence of anything to the contrary, it apvided case in support of this proposition, save pears that the wife of the ward is proin the case of the marriage of a female hibited by the guardian from enjoying the ward. Counsel for respondent, on the other society of her husband, and that he is being hand, maintains that, if the guardianship restrained of his liberty in a way which can be terminated by the ward's own act, calls for the interference of this court. See without any action by the probate court, Whitten v. Tomlinson, 160 U. S. 231, 242, then, although he is incompetent, and has 40 L. ed. 406, 412, 16 Sup. Ct. Rep. 297. been so adjudged, he immediately becomes Whether the guardianship is terminated or competent to remove his own disability, not, therefore, the petitioner's right to a while still incompetent for every other pur- writ of habeas corpus is made out. pose; and it must be admitted that this argument is a very cogent one. Fortunate- Blodgett, J., concurring: lx; however, we are not under the necessity I concur in the conclusion reached in the of deciding the question thus raised, for, foregoing opinion, for the reason that the even granting that the marriage of the ward appointment of a guardian in Rhode Island did not terminate the guardianship of his had no effect upon the person or property person, the petitioner is still, under our own of the ward in Massachusetts. Mitchell v. viecision, entitled to the relief she prays. In People's Sav. Bank, 20 R. I. 500, 40 Atl. Tillinghast v. Holbrook, 7 R. I. 230, the 502. And such is the law in Massachusetts. court passed upon the question whether a / Woodworth v. Spring, 4 Allen, 321; Milli

a

case.

ken v. Pratt, 125 Mass. 374, 28 Am. Rep. / several suits against joint and several 241, and cases cited. And see Hoyt v. makers of a note. Sprague, 103 U. S. 613, 26 L. ed. 585; Briggs v. Titus, 13 R. I. 138; Quidnick Jorgan v. Potter, 157 U. S. 195, 39 L. ed. Co. v. Chafee, 13 R. I. 388; Stillwell v. 670, 15 Sup. Ct. Rep. 590; Wuesthoff v. Ger. Bertrand, 22 Ark. 380; Selz v. Collins, 55 mania L. Ins. Co. 107 N. Y. 580, 14 N. E. Mo. App. 63; Welch v. Seligman, 72 Hun, 811. The ward, Henry C. Chace, when in 138, 25 N. Y. Supp. 363. Massachusetts, was not under the disability of guardianship there, and was according- Douglas, J., delivered the opinion of the ly sui juris in that state. And certainly, in court: the absence of affirmative proof of fraud These are petitions for mechanics’ liens, upon our law, he is entitled to the benefit of brought by subcontractors to recover for the maxim, Nullus videtur dolo facere qui work and materials performed and used in suo jure utitur. Since this is decisive of the construction of buildings for the respectthe question, I prefer to withhold an expresive respondents. In each case the respondsion of opinion as to whether the rule in ent has filed a motion alleging “that said peMedway v. Needham (decided in 1819) 16 titioner has commenced an action at law Mass. 157, 8 Am. Dec. 131, upon the validity against the original contractors, in the comof a marriage celebrated prior to 1770, and mon pleas division of this court, for the rewhich has been much criticised, or the op- covery of the same sum of money, for the posing view taken by the House of Lords same materials, labor, etc., mentioned in nearly fifty years later, in Brook v. Brook, the petition, and has in said action at law 9 H. L. Cas. 193, which has been also much attached the fund from which said lien questioned, shall be held to be the law of might be satisfied, to wit, the last payment this state, until such time as a case shall due under said original contract, which arise in which it shall affirmatively appear suit is still pending," etc., and praying that that there was a deliberate attempt to evade the petitioner may be required to elect bethe provisions of our law, and it shall between the two remedies. come necessary to determine between them. The question is thus presented whether a The writ will issue as prayed.

petition for a mechanic's lien may be prosecuted simultaneously with a suit at common law to recover the same debt from the contractor. It is a corollary from the

maxim, Nemo debet bis vexari pro eadem John W. HUNT

causa, that, if a complainant sues a defend

ant at the same time in law and in equity George E. DARLING.

to enforce the same obligation, the court in

equity will require him to elect which rem(...... R. I.........)

edy he will pursue. 1 Foster, Fed. Pr. $

295; Fletcher, Eq. Pl. & Pr. § 365, note 1; A subcontractor may pursue simulta- Quidnick Co. v. Chafee, 13 R. I. 367. If

neously a proceeding to enforce his mechanic's lien against the property and

he chooses to proceed in equity, the court action against the contractor for the will enjoin his suit at law; and, if he elects : mount due him, in which he attaches funds to proceed at law, it will dismiss his bill, due the contractor from the property owner. but without prejudice. Mitford & T. Eq.

Pl. 340; Dan. Ch. Pr. *817, note 9; Royle (November 25, 1904.)

v. Wynne, Craig & P. 252. The courts,

however, exercise wide discretion in ON

N MOTION by respondent to compel pe applying this rule, and are careful not

titioner to elect as to which remedy he to make it an instrument of oppression would pursue, where he was proceeding to by enforcing it where both remedies sought enforce a mechanic's lien, and to recover may be necessary to complete satisfaction the amount of his claim from the principal of the claim. Dan. Ch. Pr. *634, note 3; contractor. Denied.

Story, Eq. Pl. 742a. Lord Cranworth The facts are stated in the opinion. says in Ostell v. Le Page, 21 Eng. L. &. Eq.

Mr. Terence M. O'Reilly, for peti- 640: “But when the court interferes upon tioner:

motion to stop the plaintiff from proceedThere is no more reason why the peti- ing, it is taking upon itself a very delicate tioner should be compelled to elect than jurisdiction, and one in which it ought to there would be in a case of a plaintiff in see that by no possibility can it be doing

injustice.” Thus, in the absence of a NOTE.-For collection of authorities upon the subject of the enforcement of mechanics" statute to the contrary, the holder of a liens. see note to Farmers' Loan & T. Co. v.

bond or note secured by mortgage may sue Canada & St. L. R. Co. 11 L. R. A. 740.

the parties to the instrument at common

V.

an

a

men.

law, and may at the same time maintain of the parties which we have to consider. his suit for foreclosure. Dunkley v. Van In every case, if the owner is so fortunate Buren, 3 Johns. Ch. 330; Mundy v. Whit- or has been so prudent as to hold in his temore, 15 Neb. 650, 19 N. W. 694; Aylet hands money due to the contractor, he can v. Hill, 2 Dick. 551; Perry v. Barker, 13 charge against such sum any payments Ves. Jr. 198; Priddy v. Hartsook, 81 Va. which he may be obliged to make to satisfy 67; Central R: Co. v. New Jersey West mechanics' liens; but the workman has no Line R. Co. 32 N. J. Eq. 67; Jones v. Conde, lien upon such fund, and is not pursuing 6 Johns. Ch. 77; Way v. Bragaw, 16 N. J. it by this proceeding. Even if the owner Eq. 214, 84 Am. Dec. 147; 20 Enc. Pl. & has no such fund, such payments would Pr. p. 271. In Joncs v. Conde, 6 Johns. constitute a debt from the contractor to Ch. -77, Chancellor Kent says: "The one him, so that the rights of the parties in remedy is in rem, and the other in perso- these cases are not different from their re. nam; and the general rule, to which this spective rights in all cases of petitions for case is an exception, applies only to cases mechanics’ liens by subcontractors or workwhere the demand at law and in equity are So, in the case of the sale of mortequally personal, and not where the cumu- gaged land, the parties to the sale mar lative remedy is in personam, while the make such arrangement between them as other remedy is upon the pledge;" citing they please with respect to the mortgagr Booth v. Booth, 2 Atk. 313; Schoole v. Sall, debt, but the holder of the mortgage may 1 Sch. & Lef. 176; Lord Kenyon in Smart pursue his several remedies notwithstandv. Wolfe, 3 T. R. 342; Boyd v. Heinzelman, ing. 1 Ves. & B. 331; Jackson ex dem. Ireland A mechanic's lien is more nearly analoV. Hull, 10 Johns. 481; Lord Erskine in gous to a maritime lien even than to a mort. Perry v. Barker, 13 Ves. Jr. 205; and gage, and it is held that a lien may be Dunkley v. Van Buren, 3 Johns. Ch. 330. prosecuted in admiralty while a suit for the The distinction drawn by Chancellor Kent debt is pending at common law. Russell applies as reasonably to the present cases v. Alvarez, 5 Cal. 48; People ear rel. Granger as to the case of a mortgage.

V. Wayne Circ Judge, 27 Mich. 406, 15 A mechanic's lien is additional security Am. Rep. 195, and cases cited. given by statute upon certain conditions, Following these analogies, we must deny but does not in any way abrogate the con- the motions. If the petitioners should elect tract between the workman and his em- to discontinue the common-law actions, they ployer. It has been held that, like a mort could not renew their attachments if their gage, the liability to a mechanic's lien is liens should prove insuflicient; and, if they an obligation voluntarily assumed by the should elect to abandon their liens, these owner when he engages a builder. Briggs would be wholly lost if the attachments v. Titus, 13 R. I. 136. The lien proceed should not satisfy the claims. It is maniings are in rem against the land, and the festly impossible to discontinue a petition common-law action is in personam against for a mechanic's lien without prejudice. the employer. In some cases both remedies From the fact that the garnishee in each of may be required, to procure full payment these common-law cases cannot answer as of the debt, and in some cases part of the to the amount of his debt to the contractor claim only may be enforceable as a lien until the claims for liens are settled to against the land. The defendants are not which he has a right to devote the funds in the same any more than in the case of a his hands, the common-law suits cannot mortgagor who is also the maker of a note probably be satisfied until these proceedings which is secured by it. The land is the are terminated; but we see no reason why real defendant in this proceeding, whoever they should not proceed to judgment simulactively represents it in the trial of the taneously, if the plaintiff's desire to press case, and the contractor is the defendant them. in the common-law action, no matter on Counsel have not cited to us any cases what fund attachment may have been laid, directly in point, but those which we have as the land is responsible in the foreclosure found sustain the view we have expressed. of a mortgage, whether it is still owned by It is held in Bates v. Santa Barbara Counthe maker of the note, or has been trans-ty, 90 Cal. 543, 547, 27 Pac. 438, the right ferred to a new owner.

to a money judgment against the person It is represented to us in these cases that who employs the mechanic or purchases the the owners hold a certain part of the con- materials is not lost or waived by a protract price of the building, out of which ceeding to enforce the lien, or recover from they may satisfy any mechanics' liens the owner the balance of the contract which may exist, and that they have left price remaining in his hands. In West v. to the contractor the defense of these suits. | Flemming, 18 III. 248, 68 Am. Dec. 539, it We do not see how that alters the relations was held that a party may proceed to col

lect his debt by attachment and by enforc v. O'Malia, 75 Ill. App. 387. In Massachuing a mechanic's lien, as concurrent reme setts it is provided by Pub. Stat. chap. 191, dies, and the lien is not waived by so doing. $ 46, that a person having a mechanic's The court says: "The proceeding under the lien may maintain also an action at comstatute is additional or cumulative of such mon law; and it was accordingly held in other remedies for enforcement of the con- Angier v. Bay State Distilling Co. 178 tract out of which the lien arises as the Mass. 163, 59 N. E. 630, that a building party may have either against person or contractor does not waive his lien by bringproperty. He may therefore at the same ing an action at law attaching the real estime pursue several remedies for satisfac- tate. The same doctrine is held in Brention of one debt, which are not substan nan v. Sucasey, 16 Cal. 140, 76 Am, Dec. tially the same in their nature and effect, 507; Salt Lake Lithographing Co. v. Iber: as a proceeding against property and an Mine & Smelting Co. 15 Utah, 440, 62 action against the person, or two proceed- Am. St. Rep. 944, 49 Pac. 768, and in Robings against different properties or things, erts v. Wilcoxson, 36 Ark. 356, 363, withbut can have one satisfaction only;" citing out reference to any statute. 1 Chitty, Pl. 212, 254; Delahay v. Clement, The motions are denied, and the cases 4 Il. 201; Branigan v. Rose, 8 Ill. 123. will stand for hearing upon the merits. This case is cited with approval in Olson

SOUTH DAKOTA SUPREME COURT.

v.

A

George KERR, Sheriff of Beadle County, Sioux Falls Nat. Bank v. Mckee, 3 S. D. Respt.,

1, 50 N. W. 1057; Quarl v. Abbett, 102 Ind.

233, 52 Am. Rep. 662, 1 N. E. 476; Brown John MURPHY et al., Appts.

v. Goble, 97 Ind. 86; Terre Haute v. Beach,

96 Ind. 143; McCormick v. Webster, 89 Ind. (..... .S. D......... )

107; Oppenheim v. Pittsburgh, C. & St. L.

R. Co. 85 Ind. 471; Stout v. Woods, 79 Ind. A judgment of a justice of the peace, | 108; McAlpine v. Sweetser, 76 Ind. 78;

rendered within less than the time prescribed by statute after

Freeman, Judgm. $ 126 : 1 High, Inj. $$ 225,

service of summons, is not so far void that its execu- / 229, 231; Leonard v. Sparks, 117 Mo. 103, tion can be enjoined ; but the defendant must 38 Am. St. Rep. 646, 22 S. W. 899. take the proper steps to obtain a review on Where service is in some respect deficient appeal,

or irregular jurisdiction attaches subject to (March 1, 1905.)

be defeated by objections to the irregularity, PPEAL by defendants from a judgment interposed in some direct manner. of the Circuit Court for Beadle County

Pico v. Sunol, 6 Cal. 295; Moyer v. Bucks, in favor of plaintiff in a suit to enjoin tlie 2 Ind. App. 571, 16 L. R. A. 231, 50 Am. execution of certain judgments. Reversed. St. Rep. 253, 28 N. E. 992; Schee v. LaThe facts are stated in the opinion.

Grange, 78 Iowa, 101, 42 N. W. 618; FreeMessrs. Kelley & Chamberlain, for man, Judgm. § 126; Gandy v. Jolly, 35 veb. appellants:

711, 37 Am. St. Rep. 463, 53 N. W. 658; Injunction does not lie against an

('ampbell Printing Press & Mfg. Co. v. Marcution issued upon a void or voidable judger, L. & Co. 50 Neb. 283, 61 Am. St. Rep. ment rendered by a justice of the peace.

573, 69 N. W. 774; Whitwell v. Barbier, 7 St. Louis & S. F. R. Co. v. Lowder, 138 Cal. 57; Drake v. Duvenick, 45 Cal. 463 ; Mo. 533, 60 Am. St. Rep. 565, 39 S. W. 799; Low v. Mills, 61 Mich. 35, 27 N. W. 880; St. Louis, 1. 1. & S. R. Co. v. Reynolds, 1 Black, Judgm. $ 223; 1 High, Inj. 3d ed. 89 Mo. 146, 1 S. W. 208.

p. 126, $$ 165-169; Carney v. Marseilles, The judgments were not void. By reason

136 Ill. 401, 29 Am. St. Rep. 328, 26 N. E. of a defective service on the sheriff in giv- 491; Lucas v. Spencer, 27 111. 15; Smith v. ing him but two days to answer instead of l’owell, 50 ml. 21; Allen v. Smith, 72 II). three, there was simply an irregularity and 331; Clark v. Ewing, 93 Ill. 572; Beaudry an erroneous service, which must be recti- v. Felch, 47 Cal. 183; 17 Am. & Eng. Enc. fied or taken advantage of in the justice Law, 2d ed. p. 1067; Harrington v. Wofford, court, or by appeal to the appellate court. 46 Miss. 31; Leonard v. Sparks, 117 Mo.

103, 38 Am. St. Rep. 646, 22 S. W. 899; to right to injunction against Capwell v. Sipe, 51 Fed. 667, 8 C. C. A. judgments for errors or irregularities, see also, this series, Gum-Elastic Roofing Co.

419, 16 U, S. App. 704, 59 Fed. 970; St. Mexico Pub. Co. 30 L. R. A. 700, and note.

Louis, I. M. & 8. R. Co. v. State, 55 Ark.

exe

NOTE. As

in

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