The application for rehearing is considered by all the Justices except Mr. Justice KNIGHT, who is not sitting, and the same is overruled. Vance v. State, 210 Ala. 9, 97 So. 230; Gulf States Steel Co. v. Witherspoon, 214 Ala. 529, 108 So. 573; Harvey v. State, 31 Okla. Crim. 299, 238 P. 862, 51 A.L.R. 321, 323.
In Harvey v. State, 31 Okla. Crim. 299, 238 P. 862, 863, 51 A.L.R. 321, 323, on the many authorities therein cited, it is declared: "* * * It is generally held that the inhibition in a decree of divorce has no extraterritorial effect, and is enforceable only in the state where the decree is granted, and that outside of such state the marriage is generally treated as valid, although there is some division in the authorities. Where, however, the parties leave the state of their domicile and go into another state and marry, for the purpose of evading the law of the state of domicile, and forthwith return to the state of domicile, the marriage is generally held void in the state of domicile. Stull's Estate, 183 Pa. 625, 39 A. 16, 39 L.R.A. 539, 63 Am. St. Rep. 776; Com. v. Lane, 113 Mass. 458, 18 Am.Rep. 509; State v. Fenn, 47 Wash. 561, 92 P. 417, 17 L.R.A. (N.S.) 800; Powell v. Powell, 282 Ill. 357, 118 N.E. 786; Frame v. Thormann, 102 Wis. 653, 79 N.W. 39; Id., 176 U.S. 350,20 S. Ct. 446, 44 L. Ed. 500; Vickers v. Faubion, Tex.Civ.App.,224 S.W. 803; Dimpfel v. Wilson, 107 Md. 329, 68 A. 561, 13 L.R.A. (N.S.) 1180, 15 Ann.Cas. 753; Green v. McDowell,210 Mo. App. 517, 242 S.W. 168; note 32 A.L.R. 1116; Atkeson v. Sovereign Camp, W.O.W. supra [90 Okl. 154, 216 P. 467, 32 A.L.R. 1108]; Clark v. Barney, 24 Okl. 455, 103 P. 598." (Parenthesis supplied.)
See also treatment of the subject in 7 Am.Jur. p. 754, § 12, and the earlier decisions *Page 19 of this court, which are adverted to in 32 A.L.R. pp. 1139 and 1140. Revert also to the annotations in 51 A.L.R. p. 321 et seq.
We also wish to note a controlling difference between the instant case and that of Smith v. Goldsmith et al., 223 Ala. 155,134 So. 651, in that in the latter case the decree of the court had become fully operative at the time of the marriage in another state; whereas, in the instant case, the marriage occurred within the sixty-day period prohibited by the statute and the decree itself.
In the case of Vance v. State, 210 Ala. 9, 97 So. 230, it was said: "The decree of divorce is inoperative until 60 days after it was rendered, and if an appeal from it was taken within the 60 days it was inoperative until the appeal was dismissed or affirmed. * * *."
So that in this case, under that authority, the decree here in question was not operative and in full force as a decree of divorce, and therefore materially different from the situation in Smith v. Goldsmith, supra.
The statement of fact in Smith v. Goldsmith, supra, is to the effect that in 1924 the deceased married Bobbie Dublin in the State of Indiana and this second wife obtained a divorce in Alabama in March, 1926, on the ground of adultery; that the decree was silent as to defendant's right to remarry and no order was ever entered permitting deceased to remarry. The two former wives were still living and in August, 1926, deceased went with Irene Kennemer Smith, petitioner, into the State of Tennessee, where they were married after license was duly secured. They returned to Huntsville the same afternoon and continued to live together as man and wife to the day of his death in March, 1930, "petitioner being received and introduced as the wife of deceased during said time and recognized as such by the family of the deceased."
The application for rehearing is overruled.
GARDNER, C. J., and BOULDIN, BROWN, FOSTER, and LIVINGSTON, JJ., concur.