Whitney v. Whitney , 192 Okla. 174 ( 1942 )

As I construe the contract mentioned in paragraph 5 of the syllabus, the plaintiff in error, Wayne Whitney, agreed to pay to O.A. Cargill, attorney, the sum of $500 and no more for consultation and representation of Mary P. Whitney as guardian in the proceedings in county court in the appointment of her "as guardian and in the making and preparing of such orders as are necessary to carry out the terms and conditions of the guardianship by the provisions of this contract to January 1, A.D. 1941. . . ."

I find no provision in the contract for the payment or nonpayment of attorney's fees to defendant in error's counsel in a divorce action or in an action to have the nullity of the void marriage between Wayne Whitney and Mary P. Whitney ascertained and declared by a court of competent jurisdiction.

I agree that the marriage in question was void ab initio.

I also agree that such a marriage "does not require the decree or judgment of a court to make the marriage void and to restore the parties to their original rights."

And I am of the opinion that it not only is expedient for the good of society that the nullity of such a marriage be ascertained and declared by a court of competent jurisdiction, but that the Legislature by providing (12 O. S. 1941 § 1271(1)) that a district court may grant a divorce "when either of the parties had a former husband or wife living at the time of the subsequent marriage" has authorized the filing of a divorce proceeding in circumstances such as exist here, or a proceeding in the nature of a divorce proceeding wherein the nullity of the void marriage might be ascertained and declared.

I see no reason for reversing the judgment of the trial court insofar as it allows an attorney's fee to defendant in error's attorney. It was proper under 12 O. S. 1941 § 1276.

I therefore dissent to the majority opinion insofar as it disallows the attorney's fee, but concur therein on all other questions.

I am authorized to say that Vice Chief Justice CORN concurs in these views.