Nineteen Hundred Thirty-One Supplement

to Mason's Minnesota Statutes (1927 thru 1931)

Containing the text of the acts of the 1929 and 1931 Sessions of the Legislature, both new and amendatory, and notes showing repeals, together with annotations from the various courts, state and federal, construing the constitution, statutes, charters and court rules of Minnesota

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Edited by WILLIAM H. MASON, Editor-in-Chief W. H. MASON, JR., Assistant Editor

CITER-DIGEST CO. ST. PAUL, MINNESOTA 1931 §8584 CH. 70—MARRIAGE

§8564. Marriages prohibited. before such clerk and make oath that he saw said parents or guardians subscribe, or heard Marriage may be annulled where it took place within six months after divorce of defendant, them acknowledge, the same. The clerk shall through false representation. 171M340, 214NW be entitled to a fee of two dollars for ad­ 650. ministering the oath, and issuing, recording, Evidence held not to show common law mar­ and filing all papers required. Any clerk who riage. 175M547, 221NW911. shall knowingly issue or sign a marriage State v. Yoder. 113M503. 130NW10, L. R. A. 1916C, 686, followed to the effect that a mar­ license in any other manner than in this sec­ riage within the time during which the parties tion provided shall forfeit and pay for the may not remarry may be voidable but Is not use of the parties aggrieved not to exceed void under our laws. Ommang's- Estate, 235. NW529. See Dun. Dig. 5788(68). one thousand dollars. (As amendedsApr. 25, Marriage in Minnesota within one year after 1931, c. 401, §1.) divorce in Wisconsin was valid, though it would Marriage may be annulled where it took place be void under Wisconsin law. Ommang's Es­ within six months after divorce of defendant, tate, 235NW529. See Dun. Dig.. 1557, 5788(68). through false representation. 171M340, 214NW Marriage to woman who had been divorced 650. less than a year, and who was prohibited from remarrying by the laws of Wisconsin, held in­ A male person over 18 but under 21 years valid under this section. 34F(2d)284. of age and a female over 16 but under 18 years of age cannot procure a marriage license with­ out the consent of parents or guardians. Op. Atty. Gen., Feb. 13, 1930. §8569. Marriage licenses.—Application for In computing the five-day period, the day a marriage license shall be made at least five on which the application is made is to be ex­ days before a license shall be issued. The cluded and the day the license is issued is to clerk shall examine upon oath the party ap­ be included. Op. Atty. Gen., April 29, 1931. plying for license relative to the legality of Fractions of days may not be considered in such contemplated marriage, and if, at the determining five days after which a marriage expiration of said five-day period, satisfied license may be issued. Op. Atty. Gen., May 9, that there is no legal impediment thereto, he 1931. shall issue such license, with his official seal Consent of parents may be given any time during the five-day period. Op. Atty Gen., June attached, and make a record thereof, pro­ 2, 1931. vided, that in case of emergency, or extra­ A party applying for a license must appear ordinary circumstances, the judge of the personally before the clerk. Op. Atty. Gen., probate court or any judge of the district June 2, 1931. court of the county in which the application After the five-day period has expired, it is is made may authorize the license to be is­ proper to mail the license to the applicant. Op. sued at any time before the expiration of Atty. Gen., June 19, 1931. said five days. If any person intending to marry shall be under age, and shall not have §8579. Illegitimate children. had a former husband or wife, such license This statute does not refer to the children shall not be issued unless the consent of the of one marrying while still having a spouse by parents or guardians shall be personally a prior voidable marriage. 175M547, 221NW911. given before the clerk, or certified under the The presumption of the legitimacy of a child hand of such parents or guardians, attested conceived during wedlock, while strong, is not conclusive. State v. Soyka, 233NW300. See by two witnesses, one of whom shall appear Dun. Dig. 3432.

CHAPTER 71 Divorce

See §§208-1 to 208-9. protest of the one wronged and of a character justifying the belief that the object is crimi­ §8580. What marriages void. nal may constitute cruel and inhuman treat­ ment within the meaning of the divorce statute. One who married during the existence of a 170M235, 212NW193. voidable marriage was guilty of bigamy. 175M Acts of cruel and inhuman treatment which 498, 221NW867. result from a diseased mind are no cause for Evidence held not to show common law mar­ divorce. 171M258, 213NW906. riage. 175M547, 221NW911. Husband granted divorce for cruelty of the wife. 172M250, 215NW181. §8581. What voidable. Finding of cruel and inhuman treatment sus­ tained. 177M53, 224NW461. 175M498, 221NW867; note under §8580. Cruel treatment held not established. Taylor Marriage may be annulled where it took place v. T., 225NW287. within six months after divorce of defendant, Evidence held insufficient to show desertion, through false representation. 171M340, 214NW but to show cruel and inhuman treatment. 179 650. M266, 229NW128. Finding that wife was guilty of cruel and Inhuman treatment, though she used no physi­ §8585. Grounds for divorce. cal force or violence held sustained by evidence. A husband sued for a limited divorce, held Eller v. E., 233NW823. See Dun. Dig. 2778. not estopped by the decision against him in a 5. Desertion. subsequent suit for absolute divorce from his wife. 178M1, 226NW412. Nonsupport. 172M250. 215NW181. Complaint failed to establish desertion aris­ 3. Cruel and Inhuman treatment. ing out of wife's qualified refusal to live with Conduct and associations of a spouse with plaintiff while depending upon the benevolence one of the opposite sex, carried on against the of his father. Taylor v. T., 225NW287. 412 CH. 71—DIVORCE §8603

§8587. Denial, though adultery proved. troversy between parents, court will make such provision for his custody as it deems for the Condonation of adulter y held l sufficiently best interest of the child. 173M177, 216NW937. shown. 171M65, 212NW738. Application to amend decree by changing cus­ tody of children,' held properly denied; and let­ §8588. Action—how and where brought— ters by one of the children to his mother were venue.—An action for divorce or separate properly excluded. 179M520, 229NW868. maintenance may be brought by a wife in Custody of minor child, held properly changed her own name, and all actions for divorce to aunt, sister of mother who had remarried. shall be commenced by summons and com­ 180M182, 230NW479. Provision for alimony and support of chil­ plaint in the county where the plaintiff re­ dren may be changed and amended though in­ sides, as hereinafter provided, subject to the corporated in the decree by stipulation. 181M power of the court to change the place of 18, 231NW413. trial by consent of parties, or when it shall appear that an impartial trial cannot be had §8598. Possession of wife's real estate, etc. in the county where the action is pending, or This section does not prevent determination that the convenience of witnesses and ends of the rights of husband and wife in real estate so far as such issues are tendered by the plead­ of justice would be promoted by the change. ings or litigated by consent in the divorce ac­ (As amended Apr. 20, 1931, c. 226, §1.) tion, and judgment vesting absolute title to certain land in the husband, Is not open to In view of §9311,' plaintiff was entitled to collateral attack by the wife. 177M189, 222NW have the facta found and the conclusions of 922. law separately stated in writing, and judgment Where a divorce is granted to the wife, on entered accordingly. 172M72, 214NW783. the ground of cruel and inhuman treatment, the court is not authorized to grant husband any §8593. Alimony pending suit. alimony or allowance out of the property of Defendant in divorce in contempt of court the wife. 177M189, 224NW852. in tailing to obey order for payment of tem­ Court properly divided property in the name porary alimony, is not for that reason deprived of plaintiff, but coming from the defendant by of the right of defense. 173M165, 216NW940. giving a half to each. 179M266, 229NW128. Postnuptial agreements properly made be­ When the husband dies after the judgment of tween husband and wife after a separation, are divorce in his favor, and pending the appeal in not contrary to public policy, but the parties this court, and property rights are involved, his cannot, by a postnuptial agreement, oust the personal representative will be substituted and court of jurisdiction to award alimony or to the case reviewed, notwithstanding the general punish for contempt a failure to comply with rule as to the abatement of divorce actions by the judgment, though it followed the agreement. the death of either party. Swanson v. S., 234 178M75, 226NW211. NW675. See Dun. Dig. 15. Show cause order served with summons in divorce action, held to give court jurisdiction §8602. Property of husband—Permanent to mere motion for temporary alimony. 179M alimony. 106. 228NW351. $5,000 as permanent alimony and $500 as at­ torney's fees was not excessive where husband §8595. Custody of children, etc. was worth $15,000 and had monthly Income of Husband could not attack a judgment grant­ $300. 171M65, 212NW738. ing alimony entered on stipulation bcause it pro­ Where husband had annual income of $6,- vided ror support or a child living with me 000 and property worth $7,000 to $8,000, court parties, but not their own. Cary v. C, 225NW properly awarded plaintiff $2,500, and also per­ 11. manent alimony in the sum of $50 per month, Evidence held insufficient to show that mother and an allowance of $50 per month for support was unfit person to .have custody of infant child. of two children. 172M89, 214NW793. 179M184, 228NW759. Where husband worth $12,000 was granted divorce for wife's cruelty, court properly fixed alimony at one-third of that, amount. 172M250, §8596. Custody of children. 215NW181. Custody of girl of 15 years and a boy of Where the only resource for the payment of 12 years, held properly awarded to mother. 172 alimony is the income of a professional man M89, 214NW793. the statutory limitation to the net Income. 173 Habeas corpus lies to determine right to pos­ M464, 217NW488. session of child but court will give effect to Upon hearing of motion for reduction, the divorce judgment. 173M177, 216NW937. only issue is whether there has been such a Provision for custody of child in judgment is change in the status of the parties since the binding until changed but may be changed upon last time, that court should reduce or cancel application in action where conditions warrant same. 173M464, 217NW48S. it. 173M177, 216NW937. In a judgment decreeing a divorce, the court In a judgment decreeing a divorce the court may commit the custody of minor children to may commit the custody of minor children to mother and may require father to pay specified mother and may require father to pay specified sum monthly, and may make the same a lien sum monthly, and may make the same a lien upon specified real estate. 176M393, 223NWG09. upon specified real estate. 176M393, 223NW609. Alimony judgment cannot be taken on execu­ Court abused its discretion in giving divided tion by wife's pre-existing judgment creditor. custody of a child six years of age, where it 177M178, 225NW104. required frequent moving of the child between Court, held to have properly vacated amend­ homes in different states. 176M490, 223NW789. ed judgment entered on stipulation for undue Where, at time of entry of divorce decree, the influence and over-reaching. 179M488, 229NW question of custody of the child cannot be de­ 791. termined, a determination of such matter should Allowance supported by evidence, held not be made as soon as possible. 181M176, 231NW reviewable on appeal. 180M180, 230NW638. 795. §8597. Order may be revised. §8603. Order for alimony, etc., revised. Court has power to' cancel accrued install­ 176M393, 223NW609; note under §8596. ments of alimony, but must use its discretion Provision for custody of child in judgment is in doing so. there being no "vested rights." binding until changed but may be changed upon Plankers v. P., 225NW913. application in action where conditions warrant Alimony allowance, held properly modified on it. 173M177, 21GNW937. account of husband's changed financial condi­ If child was awarded to third party who has tion, and evidence of wife's misconduct may be never had nor sought possession of him, on con­ considered. 180M33, 230NW117. 413 §8604 CH. 71—DIVORCE

Provision for alimony and support of children LIMITED DIVORCES may be changed by the court though incor­ porated in the decree by stipulation. 181M18, §8609. For what causes. 231NW413. Agreement between parties as to amount of Evidence held to warrant decree of separa­ alimony did not oust court of power to amend tion. 171M213, 213NW919. its judgment as to alimony. 181M421, 232NW Evidence held to sustain finding that plaintiff 793. See Dun. Dig. 2805. could not reside with defendant with safety Fact that income from a trust estate had not and self-respect, warranting separation. 172M been paid over to defendant by trustees at time 96, 214NW771. of hearing did not prevent court from taking A judgment denying the wife absolute divorce ' such income into consideration in awarding ad­ for cruelty is not a bar to her action for sepa­ ditional alimony. 181M421, 232NW793. See rate maintenance and support for children, Dun. Dig. 2805. where she has legal cause for living apart from Fact that income from trust cannot be her husband, but there is an estoppel where reached or attached by creditors while in hands maintenance action is grounded upon the same of trustees did not prevent its consideration by specific acts of cruelty. 174M159, 218NW559. court in determining alimony. 181M421, 232NW 793. See Dun. Dig. 2803. §8613. As to alimony and wife's property. Court may modify alimony allowance where there has been a substantial change in the situ­ Finding as to value of homestead held sus­ ation of the parties. Holida v. H., 237NW2. tained by the evidence. 171M213, 213NVV919. See Dun. Dig. 2805. On decree of separation from husband earn­ ing $115 monthly, court properly awarded wife use of homestead during five years separation §8604. Security—Sequestration—Contempt. and $25 per month alimony, the wife having an income of -$57.50. 171M213, 213NW919. Contempt is not a "crime" within §9934, and, in view of §9802, punishment can only be by Where the evidence of misconduct of husband imprisonment in county jail and not in a work­ does not justify either an absolute or a limited house. 175M57, 220NW414. divorce, the court is not authorized to termi­ nate the husband's inchoate interest in the Postnuptial agreements properly made be­ wife's real estate even though the misconduct tween husband and wife after a separation, are may legally justify her in living apart from not contrary to public policy, but the parties him. 174M159, 218NW559. cannot, by a postnuptial agreement, oust the court of jurisdiction to award alimony or to punish for contempt a failure to comply with §8614. When separation not granted. the judgment though it followed the agreement. 178M75, 226NW211. 177M178, 225NW104. Postnuptial agreement to pay wife certain Court may require father to pay support of weekly amounts, incorporated in judgment of child to wife even though she has no legal the court, may be enforced by contempt. 178 cause to live apart from him. 174M159, 218NW M75, 22CNW701. 559. Irrespective of this section a court of equity The payment of attorney's fees allowed in a may create a lien agrainst real estate of a hus­ contempt proceeding to enforce a provision in band in favor of a wife for her separate main­ a judgment of divorce for the payment of sup­ tenance while justifiably living apart from him, port money may be coerced by imprisonment. though the decree is not enforceable against 178M75, 22GNW701. the husband personally. 178M531, 227NW895. The alimony obligations of a nonresident hus­ band personally served out of the state may be A husband sued for a limited divorce held enforced out of his property in this state when not estopped by the decision against him in a the custodian thereof is made a party defendant, subsequent suit for absolute divorce from his and the court has entered a preliminary order wife. 178M1, 22CNW412. enjoining him from delivering to the husband any of the money or other personal property §8615. Revocation. in his possession, and restraining the husband from disposing of any of his property in the A husband sued for a limited divorce held not state; such order and procedure constituting an estopped by the decision against him in a sub­ effective seizure of the property. 181M564, 233 sequent suit for absolute divorce from his wife. NW312. See Dun. Dig. 1553, 2811. 178M1, 22CNW412.

CHAPTER 72 Married Women

§8616. Separate legal existence. ligation upon her, and- he could recover for work performed after the marriage. Archer v. Status of marriage has not been modified by M., 236NW455. See Dun. Dig. 4258. the Married Woman's Act, and only property rights and contracts are affected thereby. State §8620. Inability of husband and wife. v. Arnold, 235NW373. See Dun. Dig. 4258. A county which furnishes necessary support §8617. Property rights. to a woma.n, deserted by her husband, may re­ Wife by letting husband use and manage her cover of the husband. 175M39, 220NW156. property apparently as his own, may estop her­ Verdict against parent for services of daugh­ self from asserting ownership as against a ter, held not excessive, and evidence as to pre­ mortgagee of the husband. 171M276, 214NW45. vious earnings of daughter, held admissible on Recital in instrument concerning conveyance issue of value. 180M100, 230NW478. of land signed by defendant and husband of Wife was not liable for negligence of her deceased were not conclusive as to the deceased husband in driving a car registered in her when she was the real party in interest. Kehrer name. Cewe v. S., 233NW805. See Dun. Dig. v. S., 235NW386. See Dun. Dig. 4259(84). 5834b. §8618. Contracts—Torts—Etc. §8621. Contracts between husband and Contract whereby plaintiff was employed at wife. a stipulated compensation per month as a farm hand was not abrogated by marriage of plain­ Archer v. M., 236NW455; note under §8618. tiff to his employer, but remained a binding ob­ !/2. Agency. 414