Walden v. Walden

238 N.W. 356, 121 Neb. 715, 1931 Neb. LEXIS 219

Opinion

Paine, J.

An action originally brought for separate maintenance was changed to an* action for divorce. The defendant denied that he was ever married to the plaintiff.

In a memorandum opinion filed by the trial judge he said: “The real issue herein is: Was there a valid marriage between the plaintiff and defendant? Plaintiff seeks divorce, but concedely there could be no divorce if there were no marriage. The evidence amply sustains a marriage between the parties according to the common law.”

' And the trial court held, because of the passage of chapter 40, Laws 1928, and particularly with reference to section 42-104, Comp. St. 1929, that the marriage was not solemnized as therein required, and dismissed the plaintiff’s action for a divorce and relief.

It appears from the briefs filed in the case that upon the question of the validity of a common-law marriage rests the determination of the case. This court has just held in Collins v. Hoag & Rollins, Inc., supra, that a common-law marriage is still valid in Nebraska.

Under the ruling in that case and for the reasons therein set out, the judgment of the district court is reversed and the cause remanded for such further proceedings as may be necessary to determine the issues therein.

Reversed.

Goss, C. J., concurs in the result. Rose and Good, JJ., dissent.