I concur in the result, but dissent from the views expressed in the prevailing opinion. An action for the annulment of a marriage proceeds upon the theory that a marriage valid in form and in effect until annulled took place. Unlike other contracts, fraud does not render this contract void or even voidable at the election of the party imposed upon, but only upon such election and the decree of the court. The action for a separation involved the fact of the marriage, but not the question as to whether facts existed which would justify the cancellation of the contract should the defendant elect to bring an action therefor. The facts might not have been known to him at the time, and if they were the statute gives him a definite time within which to make his election, which cannot be abridged by a suit against him for separation in the meantime. The defendant in the action for a separation should, if he then knew the facts and determined to elect to have the marriage annulled, have brought an action for the annulment of the marriage, and have stayed proceedings in the other pending the trial and decision thereof. That would ha-ve relieved the parties and the court of the perhaps unnecessary and fruitless burden of trying the action for a separation; but I am not prepared to say that he was obliged to take that course. If there was issue of the marriage he might refrain on that account from endeavoring to have the marriage annulled; and if such issue died before the expiration of the period for bringing an action to annul the marriage, he should not be barred from maintaining his action merely because in the meantime an action for a separation had been successfully maintained against him.
Order affirmed and motion denied, without costs.