The opinion of the court was delivered by
Clark, J.:The vital question presented to this court is as to whether or not the defendant in error was the lawful wife of Lorenzo D. Conn at the time of his death. The first contention of plaintiffs in error is, that the court did not acquire jurisdiction over the defendant in the divorce suit, and that because of that fact the decree that was entered divorcing the plaintiff from George P. Curtis and the subsequent marriage of the plaintiff herein to the said Lorenzo D. Conn were absolute nullities. The findings of fact, however, do not support this contention of the plaintiffs in error. The fact that the court found that neither the files and, papers of the case nor the records of the court nor the evidence upon the trial show that an affidavit was made and filed that the residence of Curtis was unknown to the plaintiff, and could not be ascertained by any means within her control, raises the presumption that such affidavit was not made and filed; but this presumption, and the finding of fact concerning the envelope addressed to George P. Curtis and its contents, throw no light upon the question presented. These findings do not affirmatively establish the fact that a copy of the petition, with a copy of the publication notice attached thereto, was not within three days after the first pub*424lication was made inclosed in an envelope addressed to the defendant at his place of residence, postage paid, and deposited in the nearest post-office, as required by the statute to complete the service by publication, in the absence of the making and filing of an affidavit that such residence is unknown to the plaintiff, and cannot be ascertained by any means within her control. The plaintiffs in error alleged in their answer that the decree of divorce was void for want of jurisdiction of the court over the defendant, George P. Curtis, and the burden of proof to establish that allegation was upon them ; and, in the absence of a finding of a want of jurisdiction, this court must presume that that allegation was not supported by the evidence introduced upon the trial, especially as it appears that at the hearing of the divorce suit the court found that it had acquired such jurisdiction. True, there are attached to the findings of the court certain exhibits which are probably copies of certain documentary evidence introduced upon the trial, but, as the evidence cannot be brought upon the record in this manner, the exhibits must be wholly ignored; and the evidence not having been preserved in the record, this court cannot say that the trial court erred in its findings of fact.
As it must be presumed from the record that the plaintiff below was lawfully divorced from her husband on November 18, 1887, the remaining question to be determined is as to whether or not the marriage of the defendant in error to Lorenzo D. Conn 16 days after the decree of divorce was entered was valid? The statute in force at the time the decree was entered, as well as at the time of the marriage of the defendant in error to Lorenzo D. Conn, reads as follows:
“A divorce granted at the instance of one party *425shall operate as a dissolution of the marriage contract as to both, and shall be a bar to any claim of the party for whose fault it was granted in or to the property of the other ; and no proceeding for reversing or' vacating the judgment or decree divorcing said parties shall be commenced unless within six months after the rendition of said judgment or decree, and during said six months and the pendency of said proceeding for reversing or vacating said judgment or decree, it shall be unlawful for either of said parties to marry, and any person so marrying shall be deemed guilty of bigamy : Provided, Such decree shall be final; and no proceedings in error to the supreme court shall be allowed or taken unless a notice of an intention to prosecute such proceeding in error be given in open court and noted on the journal of the court within three days after the entry of the decree or judgment, and the petition in error and transcript be filed in the supreme court within three months after the rendition of such judgment or decree.” (Laws of 1881, ch. 126,. §10
In this state a marriage contract is to be considered as a civil contract. Paragraph 3739, General Statutes of 1889, prohibits certain persons thérein named from entering into the marriage relation with each other, and declares any marriages prohibited by that paragraph to be absolutely void; and the paragraph following subjects the parties who contract marriage contrary to the provisions of said paragraph 3739 to punishment by fine and imprisonment. That statute, however, has no application to the facts in this case. The statute under construction provides that a decree of divorce shall operate as a dissolution of the marriage contract, and shall be final, unless a notice of an intention to prosecute proceedings in error for reversing or vacating the decree shall be given in open court and noted on the journal of the court within three days after the entry of the decree, to be followed *426by. the filing of the petition in' error and transcript in the supreme court within ,three months after, the rendition of such decree. The record shows that no such notice was ever given, nor were any such proceedings in error ever commenced, although nearly three "years had elapsed when this action was tried. We think, under the findings of fact, the presumption is that the plaintiff, within the time limited and in the manner required by law, sent the defendant, .Curtis,’ a copy of the petition "and .publication notice, and this; coupled with the finding as to the" notice" by publication, operated to give the court jurisdiction, and as no notice of intention to prosecute .proceedings in error was given in open court and noted on the journal of the court within three days after the entry of the decree, the decree so entered then becam'e final and the parties thereto were ho longer husband and wife.
Our attention has been called to the case of Wilhite v. Wilhite, 41 Kan. 154, in support of the contention that the marriage of plaintiff to Lorenzo E>. Conn before the expiration of six months from the rendition of the decree was absolutely void. The statutes of Oregon declared that the decree of divorce should have the'effect to terminate the marriage, except that neither party should be capable of contracting marriage "with a third person until the time limited in" which" an appeal could be taken had expired ; and the court held that under that law a decree of' divorce does not absolutely terminate the "marriage relation nor entirely free the" parties from its obligation and liabilities until" the expiration "of the time allowed in which to take an appeal. And in the case of Smith v. Fife, 30 Pac. Rep. (Wash.) 1059, cited by counsel, the statute of'Washington, which " contains" a provision that neither party should be capablé of contracting *427marriage with a third person until the period in which an appeal may he taken under the provisions of the civil-practice act had expired, received a similar construction. It will be observed that the laws of both of these states, unlike section 1, chapter 126, Laws of Kansas, 1881, make the parties to the divorce proceedings incapable of- contracting marriage within the time limited for taking an appeal; while our statute simply declares that it shall be unlawful for either party to marry within six months after the decree is entered. It does not in terms pronounce them incapable of entering into the marriage relation within that period, nor does it declare void a marriage solemnized in violation of the prohibition of the statute., Our supreme court, in the case of The State v. Walker, 36 Kan. 297, recognized this distinction between a statutory prohibition and a declaration of incapacity to contract. In that case it is held that “punishment may be inflicted upon those who enter the marriage relation in disregard of the prohibited statutory requirements, without rendering the marriage itself void” ; and on page 303 It is said that by the terms of the marriage act marriage is declared to be a civil contract, and that, in the absence of all civil or statutory regulations, the mutual present assent, to immediate -marriage of persons capable of assuming that relation constitutes a marriage at common law, and its validity will be Sustained unless some statute expressly declares it to be void. In Stevenson v. Gray, 17 B. Mon. 193, Chief Justice Marshall, in construing the Kentucky statute which prohibited a -marriage between a nephew and his uncle’s wife, said:
“ This is not a case of ordinary contract; and though it be regarded as prohibited under the penalty, it was not absolutely void, because it was not so declared by *428the statute ; and it is not now even voidable, because the statute does not provide for nor intend its being avoided after the death of one of the parties ; and being now to be regarded' and treated as a valid marriage, . . . it is also to be regarded as having all the consequences of a valid marriage, . . . and as therefore entitling the surviving husband to all the rights of a lawful husband in the real and personal estate of his deceased wife.”
In 1 Bishop on Marriage and Divorce, the following rules are laid down :
Sec. 283. “In considering whether or not a provision is to be deemed of the one class or the other [mandatory or directory] , not only its words but the nature of the subject should be taken into account. Marriage existed before statutes ; it is of natural right; it is favored by the law. Hence, in reason, any commands which a statute may give concerning its solemnization should, if the form of words will permit, be interpreted as mere directions to the officers of the law and to the parties, not rendering void what has been done in disregard thereof. Consequently, the doctrine has become established in authority that a marriage good at common law is good notwithstanding the existence of any statute on the subject, unless the statute contains express words of nullity.”
Sec. 286. . . . “ If marriage were an ordinary contract, and if it were executory only, not executed, the rule of interpretation under consideration would not apply. But, viewed as’ a contract, it is, as we have seen, executed. And the common rule in executed contracts of the ordinary sort is, that what has been done contrary to the commands of law is valid, and not liable to be avoided.”
Sec. 304. “With the dissolution” [by a divorce from the bond of matrimony] “the obligations arising from the marriage are completely discharged, and the parties stand in the same position as though such marriage had never been contracted. . . . Upon such a divorce, the status of marriage is necessarily *429taken from both parties ; so that, as one of the consequences, both are at liberty to form new alliances.”
Sec. 306a. "If, after the rendition of a divorce sentence” [which had the effect of authorizing the parties to remarry], "a statute should be passed forbidding the divorced person to contract a new marriage, it would subject him to indictment on violating it. But, ... it could not be carried by interpretation so far as to make the marriage null, unless it also contained an express clause of nullity.”
The statutes of Georgia prohibit one through whose improper or criminal conduct a divorce has been granted from marrying during the life of the person from whom he has been divorced. In construing this statute, in Park v. Barron, 20 Ga. 702, the court held that by the divorce the marriage was totally dissolved, and that while a former husband would subject himself to the pains and penalties enacted against bigamy should he contract marriage a second time during the life of the woman from whom he had been divorced, yet as he was of full age, and able to contract, and as the subsequent unlawful marriage was not declared by the statute to be void, it could not be so held by the court; and that a public policy which looks to the protection of the innocent and unoffending, to the peace of families and the welfare of society, would forbid the inference of a purpose on the part of the legislature, which they have not expressed, that the marriage of a party against the prohibition of the statute should be void.
We think that as the decree of divorce entered on November 18, 1887, became final three days thereafter, because of the failure to give notice in open court of an intention to prosecute proceedings in error, and as the statute contained no clause of nullity regarding a subsequent marriage, nor declared the *430parties incapable of contracting marriage within the period of six months from the date of the decree, the marriage of plaintiff below to Lorenzo D. Conn, on December 4, 1887, was valid, although she might be prosecuted for consummating such marriage in violation of the statute. This construction seems to be in accord with the views of the legislature, when, in 1889, the law was amended so as to make absolutely void a marriage by either party to a divorce suit before the expiration of six months from the rendition of the decree, and during the pendency of proceedings in error. As the defendant in error was the wife of said Lorenzo D. Conn at the time of his death, it was proper that the real estate of which the latter died seized should be partitioned among the parties to this suit in the manner directed by the court, and the judgment and decree will be affirmed.
All the Judges concurring.