Selah v. Selah

The object of the petitioner is to have a marriage, by a ceremony gone through when the petitioner was so much intoxicated that lie did not comprehend what was taking place, and not consummated or followed by cohabitation, declared void.

In the case of McClurg v. Terry, 6 C. E. Green 225, it was held that this cofirt has the power not only to dissolve legal contracts, which is the proper meaning of the word divorce, as used in the Constitution and statutes on the subject, but also to declare contracts of marriage void when entered into under circumstances that make such contracts invalid. The present case is not one of those enumerated in the statute where the contract is originally void, and cannot be considered within its provisions concerning divorces, as included in that term.

In McClurg v. Terry, the power to decree a marriage void was held to be in this court, because it was analogous to the *186power of divorce vested in it by statute, and if not in this court it exists nowhere. But it cannot be held to be included in the provisions of the divorce act authorizing proceedings by petition. Nor does the decision in that case hold that this court has power to dissolve a marriage actually entered into, but only that it has power to declare that such contract was never legally made. The proceeding in such case must be according to the established practice of the court — by bill. And for the same reason, the provision that the defendant shall not answer under oath, should not apply to cases like this, where the object is to declare the marriage void for some cause not provided for in the act.