Daily capital journal. (Salem, Oregon) 1903-1919, 1911-08-10
OREGON SUPREME COURT DECISIONS
Full Published BY Courtesy Of F. A. Turner Reporter Of the
Supreme Court

competent Wlluesh against Lue man.
In the suit in which the decree was
rendered. which was in question in
the case referred to, the defendant
had failed to answer, but thereafter
gave notice OF appeal and filed an
as required by law. II
was contended upon the part Of de-
fendant that the decree of divorce
did not operate to sever the marital
relations Of the parties until finally
determined upon the appeal; that un-
der the existing conditions, at the
time OF the trial Of the criminal ac-
tlon, the parties were to all intents
and purposes husband and wife. Mr..
Justice Wolverton, in this connec-
tlon, remarks:
Whatever might be the effect OF
an appeal regularly and duly taken
in suspendlng or intermittlng the
operation Of the decree of the trial
court while the appeal Is pending
., II Is perfectly manifest that
an attempted appeal where none lies
could have no possible effect upon
the finality Of the decree sought to be
revised. No appeal lies from a judg-
ment or decree given by confession
or for want Of an answer Getting
b. & c. Comp. Sec. 548; Fussman v.
Baumgartner, Or, 469; Smith v.
Glendale Mill Co., Or, 70; Trullin-
ger " Todd, Or, SO; RAIDER v.
Barr, % Or, 495; Askren Squire,
20 Or, 228) Having failed to appear
in the divorce proceedings, Leasia
was wholly without the right of ap-
peal, and any attempt that he might
have made in that direction was in
effectual to carry the case to the
higher. tribunal, and, a fortiori, was
unavailing to disturb the final effect
Of the decree itself, which terminated
the marriage as TO both of the par
ties: b. & c. Comp. Sec. SIS. There
being no appeal the decree became
operative and finally effective when
rendered, so that the objection Is not
well assigned, Mrs. Lessia not being
the wife of Leasia at the time of the
occurrence of the events about which
inquiry was made"
At the institution Of the suit by
John Endecott against Ida NJ. Ende-
colt, the summons was served upon
the district attorney, but the state
filed no anGwer and made no appear
ance. The only party therefore. who
possibly had the right to appeal was
Mrs. EndecOtt In the consideration
OF this cause II Is unnecessary to de-
termlne what effect such decree
would have upon subsequent mar
riage, entered into at an appreciable
period prior to the expiration of the
usual time for taking an appeal.
Rather 1t is necessary to determine
what construction should be placed
upon Sec, 5l5, l.. o, L., prohibiting a
subsequent marriage of either of the
parties to the decree with a third
persons. For such purpose, as con-
tradlstlngulshed from providing a
remedy upon appeal, this section is
penal in character These sections
Of our statute should receive a rea-
sonabe construction "1he general
purpose or aim of statute may be
remedial; as where they provide
punitive compensation to the injured
party. But the provisions that en-
force the wrong for which a penalty
Is. provided, and those which define
the punishment, are penal in their
character and are construed accord
lngly A statute may be remedial in
one part and penal in another And
the same statute may be remedial for
certain purposes, and literally con-
strued therefor and at the same
time be of such a nature and oper-
ate with such harshness upon class
of offenders subject to 1t, that they
are entitled to invoke the rule of
strict construction" II Lewis Suth-
erland Stat Construct. e ed). Sec.
337. See 36 Cyc.. 1850, ct seoul
ii Lewis Sutherland stat. Cob
struct, also says Sec. SIG: "A stat
ute should be so construed as to give
a sensible and intelligent meaning to
every part to avoid absurd and un-
Just consequences. and. If posslble
80 as to make Il valid and effective
Quoting from Wheeler v. Wheeler
lS4 ILL.,, 522, $500 It is familiar that
II the words employed are suscepti-
Die OF two meanings, that will be
adopted which comports with the
general public policy of the state. as
manifested by its legislation rather
than that which runs counter to such
policy ''>"
AS somewhat analogous to the case
at bar and indicative of the polIcv
OF the law as administered by the
courts let us notice the following
authorities: $50
Merriam V, Wolcott, 81 How prac
Rep (N W, 377, 392, case in which
$4,000 worth of property was in
lolved, In addition to the rights and
interests OF the parties, was where A
wife commenced an action for AZ
Vorce in the state Of Illinois SIM
posing that a decree had been rem
dered, about two hours before Il ac-
tually was she was married in good
laith to a third person and this sec
ohd marriage was held 10 be valid
lll Nelson on Divorce & Separation
sec al9l, concerning which the
court said' "And as the said mar
rage was in fact consummated nv
immediate and continued cohabitn-
ton of these parties as husband ond
Wlfe' the courts OF all the states in
Ihis country, | think, would in aid of
SUCH marriage and to sustain its va
ldlty, presume a further or subse-
Qnent marriage of said parties. If
need be, and would not allow either
OF said parties to disown such mar
rlage TO establish that they had
since IL was solemnlzed in form
hved In known and avowed state
OF prostitution and adultery, within
tee sense OF Collins, agt Collins $50
~ \" W Citing and approving
Haynes v McDermott, Of n. v, 45t
ao9' wherein 1t is observed: "The
Jaw nresnmes morality. nnd NOT inn