Warner v. Warner , 11 Kan. 121 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

Defendant in error obtained a decree of divorce in the district court of Jefferson county. To reverse this decree plaintiff in error has instituted this proceeding. Two questions only are involved. Was the petition properly verified? If not, did plaintiff in error pursue the proper course to take advantage of this defect? The first question must be answered in the negative. The affidavit verifying the petition was made before the attorney of the plaintiff. This was unauthorized. Civil code, §§641, 113, 348, 349, 350, 345; Gilmore v. Hempstead, 4 How. Pr. Rep., 153; Taylor v. Hatch, 12 Johns., 340; Nash’s Pleading’s, 99; Voorhies N. Y. Code, 311.

The second question must be answered in the affirmative. The defendant made a motion to strike out the petitiop for want of a proper verification, which motion was overruled. He then objected to any testimony under the petition, which was also overruled. This practice was correct. The defect was not one that could be reached by demurrer. It could only be reached by motion. Gilmore v. Hempstead, supra; Webb v. Clark, 2 Sandf., 647. For these reasons we shall be compelled to reverse the decree of the district court and. remand the case with instructions to sustain the motion to strike out.

We feel constrained to call the attention of the legislature to a glaring deficiency in our statutes. The defeated party in a divorce suit can take the case to the supreme court, and if error be shown, can obtain a reversal as in any other action. He has three years in which to institute such proceedings in error. On the other hand the successful party (or indeed for that matter either party) is at liberty to marry the day after the decree of divorce is entered in the district court. Suppose the successful party should marry after the decree in the district court, and before proceedings in error were instituted, and that thereafter this court should b.e compelled to .reverse the decree of the district court for manifest error: in what condition would this second marriage be, and what would be the status of the issue, if any,' of such marriage? It seems to us either that the decree of the district court should be final, and not the subject of review,'or else that a certain time be limited for the commencement of proceedings in error; and that until after that time, and the determination of the case in the supreme court, neither party should be allowed to remarry. This case brings the possibilities of such a dilemma before us, and we respectfully refer the matter to the consideration of the legislature.

All the Justices concurring.