court "that all the allegations contained in the plaintiff's complaint are true," except certain facts not material. There were other recitals which were equivalent to special findings as to the amount of the community property and as to the children, which are immaterial to the consideration of the present case. portion of the entry constituting the judgment of divorce was as follows:

"It is now, therefore, ordered, adjudged and decreed as follows, to wit: That the marriage between the plaintiff, Amelia B. Grannis, and the defendant, James G. Grannis, be dissolved, and the same is hereby dissolved, and said parties are, and each of them is, freed and absolutely released from the bonds of matrimony existing between them, and all the obligations thereof." Other provisions of the decree disposed of the property and the custody of the children.

Proceedings on appeal and motion for new trial having terminated without effect, the plaintiff on August 31, 1904, more than a year after the judgment, served on the defendant notice of a motion to set aside the portion of the decree above quoted, on the ground that it was void, it being in form and effect a final judgment of divorce instead of the interlocutory judgment prescribed by the act of 1903. In pursuance of this notice, plaintiff, on September 2, 1904, presented the motion to the court, and the court, against the defendant's objections, declared its intention to determine said motion and to make an order, to quote its own language, "that so much of said decree as awards to the said plaintiff an absolute decree is hereby vacated and set aside; but said decree, in so far as it may determine that the plaintiff is entitled to a divorce, shall be in no way modified or affected by this order." The object of the present proceeding is to prevent the superior court from making the order, or from further proceeding in pursuance of the motion.

The contention of the petitioner is, that the judgment entered 247 by the court on July 1, 1903, was both in form and effect a judgment of absolute divorce, and that as proceedings for new trial and on appeal have ended, and more than six months had elapsed at the time proceedings on the motion were begun, the superior court has no power to modify or vacate it.

After proceedings to vacate or modify a judgment on motion for new trial, or an appeal, or under section 473 of the Code of Civil Procedure, are ended, and the time therefor has expired, the superior court has no power or authority to vacate or modify its judgment in a matter of substance on account of judicial

error in the decision, no matter how apparent such error may be on the face of the record. Its power thereafter is limited to the correction of mere clerical misprisions on the record, or to the excision of such parts of the record as appear to be, or can be shown to be, void for lack of jurisdiction or power: Egan v. Egan, 90 Cal. 15, 20, 27 Pac. 22; Jacks v. Baldez, 97 Cal. 91, 31 Pac. 899; Norton v. Atchison etc. R. R. Co., 97 Cal. 390, 32 Am. St. Rep. 198, 30 Pac. 585, 32 Pac. 452. The modification proposed to be made herein is not the correction of a clerical error, but goes to the substance and effect of the judgment.

Under these circumstances the superior court has no power to make the order in question, unless the judgment proposed to be so modified is absolutely void as a final judgment. When the judgment was rendered the court had jurisdiction of the subject matter in general and of the parties. The general rule is, that, under such circumstances, a judgment, however erroneous, is not void. It must be conceded that the court cannot make this order unless, by the legislation of 1903 (Stats. 1903, pp. 75, 76, 176) amending section 61 of the Civil Code and adding thereto sections 131 and 132, the court is devested of power to enter a final judgment granting a divorce until it has first entered an interlocutory judgment declaring a party entitled to a divorce, and an interval of one year has passed thereafter before such final judgment.

The provisions of the code must be construed with a view to effect its objects (Civ. Code, sec. 4), and when the language used is not entirely clear, the court may, to determine the meaning, and in aid of the interpretation, consider the spirit, intention, and purpose of a law, and to ascertain such 248 object and purpose may look into contemporaneous and prior legislation on the same subject and the external and historical facts and conditions which led to its enactment: 26 Am. & Eng. Ency. of Law, 601-603, 623, 624, 632.

The institution of marriage is an important feature of civilization, and its preservation is essential to the maintenance of organized society. As was said in Deyoe v. Superior Court, 140 Cal. 482, 98 Am. St. Rep. 73, 74 Pac. 30: "In every civilized country marriage is recognized as the most important relation in life, and one in which the state is vitally interested. . . . The well-recognized public policy relating to marriage is to foster and protect it, to make it a permanent and public institution, to encourage parties to live together, and to prevent separation and illicit unions." Owing to the strength of human passions and

the weakness of human nature the regulation and preservation of the institution of marriage and the prevention of the abuse of the right of divorce have always been one of the most difficult problems of government. It has been considered essential to the promotion of happiness and the good order of society to provide that for certain offenses against marital rights the innocent party could, under fixed restrictions, have the marriage dissolved by judicial decree. But it has been found that this right is often abused; that by collusion and fraud, by fabricated testimony, or by the exaggeration of trifling offenses, divorces are obtained which should not have been granted; that when the procedure is easy and speedy slight causes are magnified and made the pretext for hasty divorces, and that too frequently actions for divorce are not prompted by the necessity of relief from marriage bonds which, by the fault of the other party, have become the cause of misery and suffering, but are inspired by a desire to become free from the old obligations in order to make a new alliance. It has also been found that in some cases difficult complications occur, arising from divorced persons contracting a subsequent marriage before the judgment of divorce became final by the expiration of the time within which an appeal could be taken. To prevent or mitigate these evils it has always been the legislative policy to make many restrictions in the procedure in divorce cases which are not applicable in ordinary actions.

249 In continuation of this policy the legislature in 1897 amended section 61 of the Civil Code so as to provide that a marriage contracted by a divorced person during the life of the former spouse, and within one year after the time of the judgment in divorce, should be illegal and void: Stats. 1897, p. 34. Immediately it was contended that this law was of no effect beyond the confines of the state, and that marriage solemnized during the year after the divorce within another state or territory, which were valid by the laws of such state or territory, must be recognized as valid in this state. Numerous attempts thus to evade the law were made, and much difference of opinion existed as to the legality of such marriages, until finally, in August, 1902, it was decided by this court that such marriages were valid in this state, and the question was thus settled: Estate of Wood, 137 Cal. 130, 69 Pac. 900. Thereupon the act of 1897 became practically a dead letter. All who wished to enter into another marriage within the year easily accomplished their purpose and evaded the law by a short journey beyond the borders of the state.

At its next ensuing session the legislature passed the acts making a second amendment to section 61, and adding the new sections as above mentioned. By the last amendment to section 61 it was provided, with respect to a second marriage to a different person during the life of a former spouse, that "In no case can a marriage of either of the parties during the life of the other be valid in this state, if contracted within one year after the entry of an interlocutory decree in a proceeding for a divorce." The new sections 131 and 132 are as follows:

"131. In actions for divorce the court must file its decision and conclusions of law as in other cases, and if it determines that no divorce shall be granted, final judgment must thereupon be entered accordingly. It it determines that the divorce ought to be granted, an interlocutory judgment must be entered, declaring that the party in whose favor the court decides is entitled to a divorce, and from such interlocutory judgment an appeal may be taken within six months after its entry, in the same manner and with like effect as if the judgment were final.

"132. When one year has expired after the entry of such interlocutory judgment, the court on motion of either party, 250 or upon its own motion, may enter the final judgment granting the divorce, and such final judgment shall restore them to the status of single persons, and permit either to marry after the entry thereof; and such other and further relief as may be necessary to complete disposition of the action; but if any appeal is taken from the interlocutory judgment or motion for a new trial made, final judgment shall not be entered until such motion or appeal has been finally disposed of, nor then, if the motion has been granted or judgment reversed. The death of either party after the entry of the interlocutory judgment does not impair the power of the court to enter final judgment as hereinbefore provided; but such entry shall not validate any marriage contracted by either party before the entry of such final judgment, nor constitute any defense of any criminal prosecution made against either."

The manifest purpose of these several amendments was to avoid the effect of the decision in Estate of Wood, 137 Cal. 130, 69 Pac. 900, by going a step further than the law of 1897. That law simply prohibited a remarriage within one year, and made I such marriage illegal and void, if made within this state, but it did not affect the procedure in an action for a divorce nor the validity or effect of a judgment therein. The law of 1903

acts upon the proceeding and upon the judgment, and secures the same period of delay as the former act, by providing for a delay in the entry of final judgment dissolving the marriage for at least one year after the trial and interlocutory judgment in the action. It thus presents the same obstacle to speedy divorces, the same opportunity for reflection and reconciliation, and the same check to collusion and fraud, and in the meantime it effectually prevents a subsequent marriage with another person by the simple provision that the former marriage, during the interval, shall remain undissolved. The ultimate object, of course, was to reach and mitigate the same evils to which the act of 1897 was directed.

For a time after this act took effect there was some difference of opinion among the judges of the superior courts with respect to its validity, several of them holding it unconstitutional and granting what purported to be immediate final judgments of divorce in disregard of its provisions. The question was settled in favor of the validity of the law by this 251 court in Deyoe v. Superior Court, 140 Cal. 482, 98 Am. St. Rep. 73, 69 Pac. 900. In the meantime, however, a number of so-called final judgments had been entered, among them the one here involved.

It is obvious that the entire purpose of this legislation will be practically defeated if the law receives a construction which will enable the courts at the request, or with the consent, express or implied, of the parties, or either of them, to give final judgment immediately upon the trial, and without a previous interlocutory judgment. In order to reach this conclusion the law must be held to be merely directory in this respect and the disregard of it a mere error not affecting its validity except upon appeal, or in some form of direct attack. The departure from the prescribed order of proceeding, with the consent or acquiescence of the parties, must be considered as an irregularity which is waived, and the giving of an immediate final judgment held an error, which, whether expressly waived or not, can be effectively cured and the judgment placed beyond attack, by the mere failure to appeal. Persons seeking or submitting to a divorce for the purpose of entering into another marriage, or in collusion for any improper purpose, will request, consent to, or acquiesce in an immediate final judgment, many cases will occur in which it will seem a harmless deviation from the strict course of procedure, the matter will seem unimportant, and the desire or request of the parties, or the seeming necessities of exceptional cases, will prevail, and final judgments will be im