While admitting the force of the reasons given by Mr. Justice Laughlin, in his opinion reversing the order permitting the respondent Benrimo to intervene, I hesitate to concur therewith.
Marriage is not only a contract but creates a civil status. In matters affecting such status the State as well as children and third parties are interested. In actions for a divorce section 1757 of the Code of Civil Procedure expressly confers a right upon any corespondent named in any of the pleadings at any" time before the entry of judgment to appear and to defend such action so far as the issues affect such corespondent. Before the enactment of that *139section the courts in this State, upon the application of an alleged corespondent, had permitted him to intervene to deny the charge and to cross-examine.
Although references may be had in matrimonial actions, judgment is not entered as of course upon the report of the referee, but the court examines the record and orders the judgment. In such actions an interlocutory judgment is first entered, and there must be a delay of three months before the entry of a final judgment. In this country with its numerous States, and with their various policies in relation to the subject of marriage and divorce, complications frequently arise under which a man’s status changes as he crosses State lines.
In view of these facts, of the various statutory provisions, and the attitude of the courts towards this subject, it does seem to me that it is not a violent wrenching of the provisions of section 452 of the Code to hold in an action to annul a marriage, based upon the contention that a divorce theretofore obtained in another State of the Union was invalid, that a party to that divorce, and who upon the faith and credit of it has contracted a subsequent marriage, when he comes into our courts and asks leave to show that it was a valid divorce, is a proper party to the action. He is not a necessary party I admit. The subject of the action is the validity of the marriage between the plaintiff and the defendant. Whether or not that marriage is valid depends upon the validity of the divorce heretofore had between the defendant and the intervenor.
It seems to me, upon the allegation that he fears that the defense interposed of the validity of that former divorce will not’ be properly presented, that the court should allow him an opportunity of presenting all the facts in the interests of justice, and in the preservation of the matrimonial status, always of especial concern to the State.
I, therefore, think the order should be. affirmed.
McLaughlin, J., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.