cited with approval in Gallegos v. Wilkerson, 79 N.M. at 553, 445 P.2d at 974
How later courts described this case
- cited with approval in Gallegos v. Wilkerson, 79 N.M. at 553, 445 P.2d at 974
Written by the judges who cited it.
The opinion
*463 WASTE, C. J., Concurring and Dissenting.
I concur and dissent.
I concur in the conclusion announced in the majority opinion, that the marriage of these parties was a valid marriage in the state of Nevada. I do not agree that such marriage is immune from attack under the provisions of section 82 of the Civil Code, which provides that marriages may be annulled for the causes there specified. Were we here dealing with an ordinary contract, the conclusion reached by the majority of the Justices would find support; but we are dealing with a marriage contract, a contract of exceptional nature, which relates to the status of the parties to the contract, a status in which the state of California is primarily interested. I am of opinion that the language in the cases has a wider meaning and, in view of the fact that it relates to the marital status of citizens of the state, is subject to a different interpretation than that given to it by the other opinion. That language is to the effect that, as to marriages performed in California of persons under the legal age of consent, without the consent of parents or guardians, such marriages not having been declared by law to be illegal are legal and valid for all purposes until annulled. (In re Ambrose, 170 Cal. 160 [ 149 Pac. 43 ]; Campbell v. Campbell, 78 Cal. App. 745 [ 248 Pac. 762 ] ; People v. Souleotes, 26 Cal. App. 309 [ 146 Pac. 903 ] ; 16 Cal. Jur., p. 913.)
Neither the state of Nevada nor the state of California has declared marriages contracted in the respective states by persons under the age of consent, without the prescribed consent of parents or guardians, to be illegal. Consequently, such marriages are valid, even though, it has been held, disobedience of the statute may entail penalties on the licensing or officiating parties. (In re Ambrose, supra. See, also, 2 Schouler on Marriages and Divorce, 6th ed., see. 1122.)
I am of the view that the parties contracted a marriage legal and binding until annulled' or dissolved. Section 82 of the Civil 'Code, relating to marriages contracted as this one was, presupposes that they may, on proper grounds, be annulled and set aside. California, by enactment of section 63 of the Civil Code, accords full recognition to the rules and laws of comity by providing that this marriage,- valid in Nevada, is valid here. This state, however, has exercised its unquestioned prerogative to legislate concerning the *464 marital status of its citizens domiciled here by expressly providing that such marriages may be annulled when the proper ground is established.
The demurrer of plaintiff to defendant’s cross-complaint was improperly sustained, and the judgment should have been reversed.
Shenk, J., concurred.
Rehearing denied. Waste, C. J., Shenk, J., and Nourse, J., pro tern., voted for a rehearing.