dissenting:
I am unable to concur in the majority opinion in this case.
In the late spring or early summer of 1930, Mrs. Green-burg brought suit for divorce, the grounds therefor being that her husband had deserted her and had not been heard from since September 2,1923. She obtained a decree a vinculo on September 5, 1930, three days after the presumption of death had become established. It thus appears that before any decree was taken the period from which this presumption arises had passed. Plaintiff then stood upon her election. She might have dismissed or abandoned her suit and acted upon the presumption that her husband was dead; she might have proceeded to prosecute it to a final decree. She chose the latter course.
This presumption of death is a rebuttable presumption, and if relied upon might have led to embarrassing results, for Greenburg might have reappeared and she might have found herself possessed of two husbands instead of one. It was in view of these possibilities that this lady elected to proceed under and to take under the statute. *644That statute, in terms, declares that parties divorced shall not remarry within six months. Its language is perfectly plain, and being plain there is no occasion to interpret it. If we were to speculate as to the reasons which led to its enactment, we would probably reach the conclusion that it was to restrain a too hasty journey from the court room to the altar; hut whatever may have been the reason the legislature has spoken. It has the power to say that those divorced shall never remarry. In short, it has the power to impose any conditions which in its judgment seem wise.
It is interesting to note that since the opinion in this case was handed down, Code, section 5113, has been amended. The matters dealt with have become matters of public comment in the press and through the law journals of the State. One of counsel in this case was a member of the legislature. And yet, the prohibitions theretofore provided stood unchanged, save in one respect,— those divorced might remarry each other at any time.
In short, my conclusion is that Mrs. Greenburg, when she saw fit to pursue the statutory remedy which she did pursue, took such a divorce as the court had power to give her, and she took it cum onere. She did not have to take it, but she elected to take it burdened with the conditions of which she now complains.
If Greenburg were to reappear tomorrow and stand upon his marital rights, can we doubt for a moment that Mrs. Simpson would tell him they were measured by the decree of September 5, 1930? She would tell him that she had never relied upon any presumption but stood upon a court decree which she had with forethought secured to meet this possible emergency.