Vigno v. Vigno ( 1918 )

The marriage ceremony performed between the libelant and the libelee November 17, 1914, had no validity and was absolutely void, if the libelant was married at that time. If such were the case, the only order that could be made in this case would be a decree of nullity. Bickford v. Bickford,74 N.H. 448, 453.

The libelant contends that as there was a marriage ceremony performed between her and the libelee, it was incumbent upon the libelee to prove that it was not a valid marriage; that Sayles was alive and was her lawful husband when the divorce case of Sayles v. Sayles was tried in October, 1914. Assuming that this contention is correct, it does not aid the libelant, because her application for a divorce from Sayles was an admission that he was then living and was her lawful husband, and authorized the finding of these facts.

The libelant also claims that the memorandum, "divorce decreed, cause desertion," made by the trial court upon the back of the libel in Sayles v. Sayles when that cause was heard October, 1914, was a final decree of divorce. This contention cannot be sustained. The minutes entered by the court upon the back of the libel were simply finding of fact, upon which a final decree of divorce might be entered at the judgment day of that term of court. The judgment day is the last day of the term of a court unless a special judgment day is ordered. New Hampshire Strafford Bank v. Cornell,2 N.H. 324, 332; Haynes v. Thom, 28 N.H. 386, 399; Carpenter v. Carpenter,78 N.H. 440, 442. The judgment day for this term of court was January 1, 1915, and no special judgment day was ordered in the action of Sayles v. Sayles. Therefore the decree of divorce in that case was January 1, 1915. The libelant can apply to the superior court to bring forward the action of Sayles v. Sayles, and move to have the decree of divorce vacated, and a decree nunc pro tunc entered as of the date of the hearing in October, 1914. Adams v. Adams, 51 N.H. 388, 396; Clough v. Moore, 63 N.H. 111; Brown v. West, 65 N.H. 187. But as the case now stands the order must be[.]

Exceptions overruled.

All concurred.