The opinion
On Motion for Rehearing.
We will note two points made in appellee’s motion for rehearing, which are substantially, as follows:
(1) We should not have considered the issues raised in appellant’s brief because no assignments of error were filed in the trial court, and the record does not present fundamental error.
(2) We should not have gone out of the record to determine the laws of Kansas.
Upon the first point: The only issue presented in the appeal was the correctness of the trial court’s action in dismissing appellant from the ease. The record shows conclusively that this action was based upon an admission of appellee as to the insanity of Earl W. Reeves, and unconflicting evidence as to the status of such marriage under the laws of Kansas. The question thus presented is one we think fundamentál in its nature, going to the very right of appellants as litigants in the case, and the error committed by the court is apparent upon the face of the record.
Upon the second point: We concede we are bound by the record showing of the laws of Kansas. As stated in our original opinion, the evidence upon that subject consists of a deposition of a Kansas attorney unequivocally pronouncing the marriage of an insane person void under the laws of that state; the opinion in Powell v. Powell clearly holding to the same effect; the testimony of this attorney that that decision has never been modified; and certain statutes of Kansas quoted m our original opinion. Our interpretation of this evidence, all of which is taken from the record, is that it is conclusive to the effect that the marriage in question was void under the laws of Kansas, if Reeves was insane at the time, and so remained until his death. The identity of section 60 — 1515 with Old Code, § 64S, appears from the language of Powell v. Powell, quoted in our original opinion, independently of the annotation references not introduced in evidence in the trial court. The quoted language leaves in our mind no substantial doubt that the court had before it the same statute introduced in evidence as section 60 — 1515.
• But, if the record left in doubt the conclusiveness of Powell v. Powell as a construction of article 60 — 1515 under Old Code § No. 648, it would become our duty to construe the article and its effect upon the decision in Powell v. Powell as an original question. And further, it may be noted appellee strenuously urges in her motion for rehearing that, even though the Kansas case be regarded as construing article 60 — 1515, “this court cannot be bound by a construction of the act so grossly erroneous and unreasonable.” In construing this article as an original question, we are certainly not bound by the record, but may freely examine the authorities of other states, not as binding upon this jurisdiction, but as persuasive. In making such investigation we would, in connection with adjudicated cases, be free to examine the text of such statutes as were being considered. In our original opinion we expressed the view that independently of its binding authority as construing the act in question, the holding in Powell v. Powell upon this issue seemed to us sound. We adhere to that view as well as to the view that Powell v. Powell appears from the record to have been adjudicated in the light of section 60 — 1515.
The motion is overruled.
Overruled.