Drummond v. Irish

Rothrock, J.

1. marriage: when void: annulment. I. It appears from the evidence, and an agreement made by the parties, that plaintiff was married in due form to one W. P. Eaton, prior to her mar-riage with John Drummond, and that at the time of her marriage with Drummond, Eaton wTas still living, and that he and the plaintiff had not been divorced, nor the bonds of matrimony existing between them severed by any judicial or other legal jmocceding, and said Eaton is still living, and still undivorced from plaintiff. It further appears that at the time of the marriage of plaintiff with said Eaton, he had a wife living from whom he had not been divorced, and that said wife is still living and not divorced from him, and that plaintiff never lived with said Eaton after she was married to him.

Section 2201 of the Code provides that “ marriages between persons whose marriage is prohibited by law, or who have a husband or wife living are void. * * *The marriage of the plaintiff with Eaton was, therefore, void, and neither of them acquired any rights thereby and the plaintiff .lost no right. Being void it was the same as though no marriage had *43 ever taken place. Tlie marriage with Drummond was valid, and the court properly held that plaintiff was entitled to the property as widow. See Carpenter v. Smith, 24 Iowa, 200 ; Bouvier’s Law Dictionary, vol. 2, 246.

It is contended by counsel for defendant “that the first and illegal marriage must be judicially annulled before civil rights can be acquired, or civil remedies demanded by reason of a subsequent legal marriage.” This position would doubtless be correct if the marriage were merely voidable, but it can have no application to that which the law declares to be a void mama ge. The fact that the Code contains provisions for annulling marriages of this character and judicially determining the status of the parties, cannot be regarded as changing the rule which has always obtained that a void marriage is no marriage.

2. costs: estate : administrator. II. The principal items of cost were made upon the issue as to the insanity of Drummond at the time of the marriage with the plaintiff. The court taxed the costs to the estate. From this order plaintiff appeals. The defendant, Irish, in addition to his refusal to defend against the claim of the plaintiff' as shown in the foregoing statement of facts, filed his affidavit, stating that he did not appeal from the judgment entered in the Circuit Court, and that he did not authorise any one to use his name for that purpose. "We think all the costs that accrued after the defendant, Irish, refused to defend the action, and the statement in writing was filed that the heirs only were represented by counsel, should have been taxed to the heirs named in the record, and that the costs in this court should be taxed to them. It is trae tliey were made parties in an informal way, but their names appear of record as defending tlie claim, and but for the defense made by tliem the costs would not have been made. The Code, section 2933, provides “that costs shall be recovered by the successful against the losing party.” There is the exception that the court may make an equitable apportionment of costs when a party is successful as to part of his demand and fails as to part. But this case is not within the exception. The plaintiff recovered the whole of her demand. The case *44 presents no equitable grounds upon which the costs can be taxed to the estate. Its representative refused in the court below to defend, and he refuses to prosecute this appeal.

The cause is affirmed upon defendant’s appeal, and upon plaintiff’s appeal

Reversed.