Riddle v. Riddle.

Christendom it means the union of two people, who promise to live through life alone with one another. It does not mean the same thing in Utah, as a man is at liberty to marry as many women as he pleases. It would be extraordinary if a marriage in its essence polygamous should be treated as a good marriage in this country. Different incidents of minor importance attach to the contract of marriage in different countries in Christendom, but in all countries in Christendom the parties to that contract agree to cohabit with each other alone. It is inconsistent with marriage as understood in Christendom that the husband should have more than one wife.” And he rejected the prayer of the complainant for that reason.

In re Bethell, supra, it appears that Bethell, an English subject, married Tepoo, who was a member of a semi-barbarous tribe of the Baralongs. Polygamy prevailed among the members of the tribe, and the marriage was consummated in accordance with the custom, which is as follows: "When the consent of the parents has been obtained, the bridegroom slaughters a sheep, a buck, an ox, or a cow. The head of the animal is taken to the bride's parents, as also the hide, which is cleaned and softened. They are then considered married, and after the birth of the first child the number of the cattle previously agreed upon is handed over to the wife's parents." The doctrine of the case of Hyde v. Hyde was approved and followed, and Stirling, J., after quoting from that case and from the opinion of Lord Brougham in the celebrated case of Warrender v. Warrender, 2 Cl. & F. 532, 533, in which the same doctrine was held, said: "I conceive that, having regard to these authorities, I am bound to hold that a union formed between a man and a woman in a foreign country, although it may there bear the name of a marriage, and the parties to it may there be designated husband and wife, is not a valid marriage according to the law of England, unless it is formed on the same basis as marriage throughout Christendom, and be in its essence

Riddle v. Riddle.

'the voluntary union for life of one man and one woman, to the exclusion of all others.'"'

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We are of the opinion that, notwithstanding celestial or plural marriage is one of the essential tenets of the Mormon Church, the legal status of marriage exists between parties who, in Utah, before the enactment of any statute upon the subject, through members of that church, have made a contract of marriage in which they mutually agree to assume and observe the legal obligations of that relation, and in pursuance of that agreement openly cohabit as man and wife and hold themselves out to the public as such; but, in the absence of such an agreement, the legal status of marriage cannot arise. This brings us to the consideration of whether it is shown by the evidence that the appellant and Mary Ann Knell entered into a legal contract of marriage. During the life of the appellant's first wife, and after her death, up to the 10th of May, 1885, the date at which the ceremony before a justice is alleged to have been performed, the appellant himself testified that he lived with Mary Ann Knell as his plural wife, and that both before and after the death of his first wife he introduced Mary Ann Knell as his wife. It also appears that he continued to cohabit with his first and second plural wives, after the death of his first wife, until the death of Mary Ann Knell in 1899. It is evident from these facts that no legal contract of marriage between the appellant and Mary Ann Knell was entered into previous to May 10, 1885, or that at common law their status was that of husband and wife.

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2. It is further contended by appellant that, prior to his marriage with the plaintiff, he, on the 10th day of May, 1885, entered into a formal marriage before a justice of the peace with Mary Ann Knell.

While it is clear that there was a formal ceremony 5 of marriage performed by the justice of the peace, we are not satisfied that it took place before the alleged marriage with plaintiff, or that the parties really

Riddle v. Riddle.

intended thereby to change their plural relations, but simply to disqualify Mary Ann Knell as a witness. The appellant in his testimony states that one of his reasons for marrying Mary Ann Knell was to keep her from testifying in the event of his arrest. The plaintiff testified that the appellant, at the time she married him, told her that he had two plural wives, and in another connection that he told her about taking Mary Ann Knell to the justice of the peace and being married; that he said he got a scrap of paper for Mary Ann Knell, so that it would throw her out in the trial, and that it answered that purpose.

In view of the foregoing testimony, and the fact that at the time the justice performed the ceremony Mary Ann Knell and Mary Roland were his plural wives, and that after the ceremony he continued to cohabit with both as his wives, as he had previously done, it is clear that the ceremony before the justice of the peace was a ruse resorted to for the purpose of disqualifying Mary Ann Knell as a witness, and not with the intention of disturbing his polygamic relations then existing, and refutes the idea that the parties intended to consummate a monogamic marriage.

3. The appellant also contends that he married. the plaintiff as a plural wife.

It appears from the evidence that both the appel6 lant and the plaintiff were members of the Mormon Church; that the plaintiff, at the time of her alleged marriage, was aware of the fact that the appellant had two wives; that the marriage ceremony was performed in the Logan Temple on the 9th day of November; and that the plaintiff, in the last week of the same month, went to the home of Mary Ann Knell, and was there introduced as Mrs. Langford, and within a year or less from that time was moved by appellant to the home of Mary Ann Knell, and from thence for years these women lived together and cohabited with the appellant as his wives. The appellant testified that he married the plaintiff as a plural wife. In this he is corroborated

Riddle v. Riddle.

by the facts just stated. In view of the facts disclosed by the evidence, and that one of the essential tenets of the church to which the parties belonged was celestial or plural marriage, and that there is not any evidence showing the form of the ceremony performed in the Logan Temple, there is not the least probability that it was a monogamous marriage, uniting the contracting parties in wedlock for life, to the exclusion of all others, or that the parties mentally agreed that the appellant should observe or be bound by the legal obligations of a monogamic marriage.

We are clearly of the opinion that none of the three women mentioned became the legal wife of the appellant, but that their relations to him were those of plural wives, and he did not, therefore, incur the legal obligations of marriage in respect to either of them. We are,

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however, of the opinion that he became, and still is, morally bound, not only, if able to do so, to support his plural wives but also to support and educate the children of the plural wives begotten by him; but, as secular courts are powerless to enforce any but legal obligations, the judgment must be reversed.

It is therefore ordered that the judgment be reversed, with costs, and the case remanded, with directions to the court below to dismiss the complaint.

BARTCH and MCCARTY, JJ., concur.

Farrell v. Larsen.

A. L. FARRELL, Respondent, v. JACOB N. LARSEN, Appellant.

No. 1468. (73 Pac. 227.)

1. Elections: Contests: Ballots: Preservation: Evidence: Burden of Proof.

Where, in an election contest, contestant desires to Introduce ballots voted in evidence, the burden is on him to establish, as a condition precedent to the introduction thereof, that they have been kept in the manner prescribed by Revised Statutes 1898, sections 863, 865.

2. Same.

Revised Statutes 1898, section 863, provides that judges of election, before adjournment, must deliver the package of ballots, counted and sealed as prescribed by section 858, to one of their number, who must, without having opened the package, deliver the same to the county clerk, etc. Section 865 requires that on receipt of the package the clerk must keep it unopened and unaltered for twelve months, after which, if there is no contest, he must burn the package without opening or examining the same. Held, that where, in an election contest for the office of county clerk, it appeared that the ballots were delivered to the contestant, who was the incumbent of the office, and that a number of the packages were unsealed, and were deliberately placed and kept in an unlocked telephone room in the clerk's office, which was unlocked, and to which unauthorized perscrs had unrestricted access, such ballots were inadmissible.

(Decided July 31, 1903.)

Appeal from the First District Court, Cache County.Hon. Charles H. Hart, Judge.

Action by a rival candidate to contest the election of the defendant to the office of county clerk of Cache county, Utah. From a judgment in favor of the plaintiff, the defendant appealed.

REVERSED.