Opinion
4 Div. 350.
November 16, 1944.
Appeal from Circuit Court, Houston County; D.C. Halstead, Judge.
H. R. McClintock and O. S. Lewis, both of Dothan, for appellant.
Bigamous marriages are void ab initio, and there is no necessity for a decree declaring such a marriage void. The case of Johnson v. Johnson, 245 Ala. 145, 16 So.2d 401, should be overruled. McCaig v. State, 16 Ala. App. 581, 80 So. 155; Ex parte McCaig, 203 Ala. 699, 83 So. 927; McLaughlin v. McLaughlin, 201 Ala. 482, 78 So. 388; Walker v. Walker, 218 Ala. 16, 117 So. 472; Martin's Heirs v. Martin, 22 Ala. 86; Alabama Digest, Marriage, 128, § 11; U.S. v. Barker, 5 Cir., 70 F.2d 1002; Hines v. Hines, 203 Ala. 633, 84 So. 712; Woodward Iron Co. v. Bradford, 206 Ala. 447, 90 So. 803; Bell v. Tennessee C., I. R. Co., 240 Ala. 422, 199 So. 813; Boyles v. Wallace, 208 Ala. 213, 93 So. 908.
W. L. Lee Alto V. Lee, III, of Dothan, for appellee.
The question raised by appellant has been answered adversely to her in the case of Johnson v. Johnson, 245 Ala. 145, 16 So.2d 401, and on authority of that case the decree appealed from should be affirmed.
The assignment of error challenges the overruling of defendant's demurrer to the bill of complaint. This is, in effect, an effort seeking to overrule the decision recently announced by this Court in Johnson v. Johnson, 245 Ala. 145, 16 So.2d 401, 405. That decision is founded on well-considered authorities and will not now be declared erroneous. We are of the opinion, as we have heretofore stated, that the true rule is, that "To preserve the good order of society and to keep the peace of mind of all persons concerned, the nullity of a void marriage should be ascertained and declared on due application while the facts are available, by a decree of a court of competent jurisdiction." Johnson v. Johnson, supra; Rawdon v. Rawdon, 28 Ala. 565; Wightman v. Wightman, 4 Johns. Ch., N Y 343.
It results therefore from the foregoing that the decree of the Circuit Court should be and the same is hereby affirmed.
Affirmed.
GARDNER, C. J., and FOSTER and STAKELY, JJ., concur.