
    Reacke Back, Appellant, v. Amiel J. Back, Executor of the Estate of William Back, Deceased.
    1. Pleadings: effect of adverse ruling on demurrer. Pleading over after an adverse ruling on demurrer is not, under our present statute, a waiver of the right to subsequently raise the same questions in some other manner.
    
      2 Marriage and divorce: relationship by affinity: termination. Relationship by affinity terminates by the termination of the marriage which gave rise to the relationship, when it occurs either by death or divorce. So that the marriage of a man to the daughter of his divorced wife by a former marriage is not invalid, because within the prohibited degrees of affinity as defined by Code, section 4936.
    
      Appeal from Ida District Gourt. — Hon. Z. A. Church, Judge.
    Saturday, April 9, 1910.
    In a probate proceeding for the settlement of the estate of William Back, deceased, plaintiff alleged that she was the widow of the decedent, and asked an order directing the executor to turn over and deliver to her all his exempt personal property. Issue being joined as to whether the plaintiff was the widow of decedent, the court made a specific finding that plaintiff never was the -legal wife of said decedent, and was never legally married to him, and therefore dismissed plaintiff’s application and entered judgment for the defendant for costs. From this judgment, the plaintiff appeals.
    
    Reversed.
    
      J. B. Tour gee and Johnston Bros., for appellant.
    
      M. M. White and W. A. Uelsell, for appellee.
   McClain, J.

The facts out of which this controversy arises are not in dispute, being settled by stipulation of the parties appearing in the record. So far as we deem them material to a disposition of the case, they are as follows: In 1890, William Back, the decedent, married a widow, one Mrs. Dirke, who then had living a daughter by her former husband. The daughter is the plaintiff in this case, In 1900, the wife obtained a divorce from said William Back, aud four years later he married the plaintiff. No children were born to William Back by bis first marriage, but as a result of bis marriage to plaintiff four children were born, all of whom survive him. About two years after tbe second marriage tbe divorced wife, mother of tbe plaintiff, died, and thereafter plaintiff and tbe decedent continued to live together as husband and wife until bis death in 1906. Tbe resistance of defendant to plaintiff’s application as widow to have tbe exempt property set apart to her was on tbe ground that tbe marriage was incestuous and void under the.'provisions of Code, section 4936, which within tbe definition of “incest” includes marriage between a man and his wife’s daughter, and prohibits such marriage. Tbe trial court ruled throughout that, notwithstanding tbe termination by divorce of tbe marriage between decedent and plaintiff’s mother before tbe marriage of decedent to this plaintiff, plaintiff continued to be decedent’s wife’s daughter within tbe statutory definition, and that tbe marriage to plaintiff was void in its inception and continued to be void ’after tbe death of plaintiff’s mother and until tbe death of decedent, and that, therefore, plaintiff is not tbe widow of decedent. Before- reaching tbe question as to tbe correctness of this ruling of tbe trial court, it will be necessary, however, to pass on a question of practice for tbe purpose of determining whether such ruling is properly before us for review.

I. Defendant’s answer fully set out tbe facts on which was based the claim that the marriage of decedent to this plaintiff was void, and the demurrer of plaintiff to such answer distinctly raised the question whether it was prohibited under the statute alrea¿y referred to. This demurrer was overruled, and the plaintiff by standing on her demurrer and submitting to judgment might on appeal have had that question adjudicated in this court. Had she done so, a decision in this court affirming the ruling on the demurrer would have concluded the controversy, and plaintiff would have had no opportunity to raise any other questions of law or fact in the case. She evidently desired, however, to raise other issues and havé them adjudicated, and therefore, instead of standing upon her demurrer, she filed a reply in the first division of which she alleged the same facts as to the marriage of decedent to Mrs. Dirke, the procuring of a divorce by her from him, and the second marriage of decedent to this plaintiff, no issue having resulted from the former marriage, as fully as such facts had been already stated in defendant’s answer, but with the legal conclusion that she was the due and legal wife of decedent, and entitled to participate as his widow in the estate of said decedent, and in other divisions of her reply she alleged facts relied upon as constituting an estoppel of defendant to assert the invalidity of the marriage. Thereupon the defendant demurred to each division of the reply, challenging the sufficiency of the facts pleaded in tke first division thereof as constituting a sufficient reply to defendant’s answer for various reasons, one of which was that the facts so alleged were fully set out in the answer to which the reply was filed, and had been held sufficient as a defense by the ruling on the demurrer thereto. This demurrer of defendant to plaintiff’s reply was sustained. Thereupon the case came on for trial on the issue arising as to the truth of the facts alleged in defendant’s answer which were by our rules of pleading deemed denied by operation of law. By stipulation the plaintiff admitted the facts to be as alleged in defendant’s answer, but objected to their being considered in evidence, for the reason substantially that they did not tend to show the invalidity of the marriage between plaintiff and decedent; and this objection was by the court overruled. Thereupon plaintiff' offered evidence by way of stipulation as to the facts tending to support the allegations of her reply in estoppel, to the consideration of which defendant objected on the ground that such facts did not tend to support any issue -in the case, and this objection was by the court sustained. The court then sustained a motion for defendant on the record to render judgment in his favor for costs, and entered a judgment to that effect, in which it was recited that plaintiff never was the legal wife of decedent, and was not entitled to recover under the law as his widow and dismissed plaintiff’s application.

The contention of appellee now is that appellant by filing the reply after her demurrer to the answer had been sustained waived any error in such ruling, and can not now rely upon such alleged error as a ground for reversal. The rule which was well established by earlier decisions of this court, to the effect that, by amending or pleading over after a ruling on a demurrer, the unsuccessful party waived any error in such ruling, had the manifest result of depriving him of an opportunity to insist upon an error of law committed in a ruling on a demurrer if he by amendment stating additional facts relied upon as constituting' a cause of action, or by pleading additional matters of defense or reply, sought to raise other issues than those arising on the pleadings as they stood at the time the ruling against him on demurrer was made. For instance, the defendant could not question the legal sufficiency of the allegations of plaintiff’s petition, and also question their truth. If he demurred to their sufficiency, and his demurrer was overruled, and standing on his demurrer judgment was entered against him, he could not afterward, when by appeal it had been determined that the ruling on demurrer was correct, get back into court 'for the purpose of contesting the truth of the allegations; while, on the other hand, if he relied subsequently on a denial of the truth of the allegations and went to issue on the facts, he could not on appeal question the correctness of the ruling on the demurrer, for any error in such ruling would have been waived by pleading over. By amendatory legislation incorporated now into Code, section 3564, it was the evident purpose of the Legislature to abolish this rule so inconsistent with our system of pleading, by which either party is allowed to raise every issue of law and fact inhering in the case, and to have every ruling prejudicial to him reviewed on appeal. By that section it is provided that a ruling on demurrer shall" not be considered as an adjudication of any question raised by the demurrer and the sufficiency of the pleading may thereafter be determined as if no demurrer had been filed, and no pleading shall be held sufficient on account of a failure to demur thereto. Under these provisions, it has been repeatedly held that a ruling on demurrer does not become the law of the case, and the same question may be raised at subsequent stages of the procedure as though no such ruling had been made. Marshall Ice Co. v. La Plant, 136 Iowa, 621; Watkins v. Iowa Cent. R. Co., 123 Iowa, 390. There seems to be no difficulty in holding in this case that the plaintiff subsequently raised the same question which was raised by the demurrer to the answer. She objected to the evidence tending to substantiate the allegations of the answer on the ground that the facts did not constitute any defense, and she excepted to the judgment in which .the court specifically found that they did constitute a defense. Under repeated decisions of this court, it is the established rule following the statutory provisions above referred to that pleading over after ruling on demurrer does not waive the right to raise the same objection in some other manner. McClain v. Capper, 98 Iowa, 145; Geiser Mfg. Co. v. Krogman, 111 Iowa, 503. We reach the conclusion that plaintiff is not precluded from relying in this appeal on the insufficiency of the allegations of defendant’s answer to constitute a defense.

II. The provision of the statute relied upon for defendant as rendering plaintiff’s marriage to decedent void is in full as follows: “If any man marry his father’s sister, mother’s sister, father’s widow, wife’s mother, daughter, wife’s daughter, son’s widow, sister, son’s daughter, daughter’s daughter, son’s son’s widow, daughter’s , . , i, . , , son s widow, brothers daughter or sister s daughter; or if any woman marry her fathers brother, mother’s brother, mother’s husband, husband’s father’s son, husband’s son, daughter’s husband, brother, son’s son, daughter’s son, son’s daughter’s husband, daughter’s daughter’s husband, brother’s son or sister’s son; or if any person,' being.within the degree of consanguinity or affinity in which marriages are prohibited by this section, carnally lmow each other, they shall be guilty of incest, and imprisoned in the penitentiary not exceeding ten years nor less than one year.” Code,' section 4936. It will be noticed that this is a penal statute, the primary purpose of which is to provide a punishment for marrying a person related within specified degrees of consanguinity or affinity, or carnal knowledge between persons related in such degrees. It does not purport to declare the status of persons who marry within the prohibited degrees, but by Code, section 3182, it is provided that a marriage may be annulled by a proceeding in court if it is between parties whose marriage is prohibited by law, and the only corresponding prohibition is that found in the criminal statute above quoted.

We shall not stop now to discuss the question whether a marriage between parties within the prohibited degrees of consanguinity or affinity is void or voidable ‘only, but proceed at once to determine whether the marriage of plaintiff to decedent was within any of the prohibitions of Code, section 4936, and the determination of this question depends upon the construction of the words “wife’s daughter” in that section. As the statute is penal, it should not be applied to any case which does not fall both within its letter and its spirit; and this rule of construction must evidently be followed for the purpose of determining the validity of a marriage, which it is contended is invalid because the parties to it are within the prohibited degrees of relationship. If the statute purported to be a definition only of degrees of relationship within which marriage is prohibited, it might perhaps be argued with some plausibility that, as a man could not marry his wife’s daughter while his wife was living and' undivorced without committing bigamy, the object of including wife’s daughter among those to whom a marriage is declared invalid was to prohibit such marriage after the death or divorce of the mother of such daughter; but, as the primary purpose of the statute apparent on its face is to punish carnal knowledge as between persons having the specified relationships as well as to punish marriage between them, it is quite evident that the enumeration of relationships is simply a method of stating more definitely what are the degrees of consanguinity or affinity rendering marriage or carnal knowledge between persons of the relationships named criminal. This is quite evident from the conclusion of the section which refers to the relationships named as being “degrees of consanguinity or affinity.” Therefore, in determining the construction to be put upon the words “wife’s daughter,” we are required to determine their meaning as defining a degree of relationship by affinity between the parties. Blodget v. Brinsmaid, 9 Vt. 27; Noble v. State, 22 Ohio St. 541; State v. Brown, 47 Ohio St. 102 (23 N. E. 747, 21 Am. St. Rep. 790); Wilson v. State, 100 Tenn. 596 (46 S. W. 451, 66 Am. St. Rep. 789); Johnson v. State, 20 Tex. App. 609 (54 Am. Rep. 535); Pegues v. Baker, 110 Ala. 251 (17 South 943); Tagert v. State, 143 Ala. 88 (39 South. 293, 111 Am. St. Rep. 17); Bigelow v. Sprague, 140 Mass. 425 (5 N. E. 144); Vannoy v. Givens, 23 N. J. Law, 201; 1 Bishop, New Crim. Procedure, section 901; 26 Cyc. 845. Of the cases cited those from Texas, Alabama and Ohio are directly in point as relating to a marriage between a man and the daughter of a former wife deceased or divorced, and the only discrepancy between them is that in the Alabama cases a modification of the rule is insisted upon, by which the relationship of affinity is held to continue after the dissolution of the marriage if and so long as there is surviving issue of. such marriage. This qualification is suggested also in some of the other cases, but, as it appears in the case before us there was no issue of the former marriage between decedent and plaintiff’s mother, the question need not now be determined.

We reach the conclusion, therefore, that the relationship of affinity between the decedent and plaintiff which existed during the continuance of the marriage relation between decedent and plaintiff’s mother terminated when the latter procured a divorce from decedent, and after that time plaintiff was not the daughter of decedent’s wife, and the marriage between them was valid.

This conclusion renders it unnecessary to determine the sufficiency of the allegations of matters in estoppel found in plaintiff’s reply which were held to be insufficient by the lower court on demurrer.

The judgment of the trial court is reversed.  