Everhart v. Cooper

• Citation: 200 N.E. 705,102 Ind.App. 1
• Decision Date: 30 March 1936
• Docket Number: 15,210
• Parties: EVERHART ET AL. v. COOPER ET AL
• Court: Court of Appeals of Indiana

200 N.E. 705

102 Ind.App. 1

EVERHART ET AL. v. COOPER ET AL

No. 15,210

Court of Appeals of Indiana

March 30, 1936

DIVORCE---Parties---Abatement on Death of Party---Judgment Nunc Pro Tunc.---Where court made finding for plaintiff in divorce action but failed to render judgment of divorce, though announcing what the judgment would be, relatives of the plaintiff were not entitled to a judgment of divorce nunc pro tunc after plaintiff's death.

From Delaware Circuit Court; Leonidas A. Guthrie, Judge.

Divorce action by Aletha Elva Cooper against Taylor Cooper, wherein John E. Everhart and others, as heirs of plaintiff, sought to set aside a judgment of dismissal entered upon plaintiff's death, and to have judgment for divorce nunc pro tunc in accordance with court's finding during plaintiff's lifetime. From a judgment against petitioners, they appealed.

Affirmed.

Francis A. Shaw, for appellants.

O'Neill & Bales, for appellees.

OPINION

DUDINE, J.

On March 13, 1930, Aletha Elva Cooper filed her complaint against appellee Taylor Cooper for divorce. Service was had upon him, and on May 22, 1930, on agreement of parties, the court ordered him to pay to the clerk of the court the sum of $ 50.00 for attorney's fees for plaintiff's attorney. On June 14, 1930, the defendant was defaulted, and the prosecuting attorney filed an answer of general denial. The court having heard the evidence, wrote the following minutes in his bench docket:

"July 31, 1930. Evidence concluded. Finding for Plff. that allege of complaint are true; that Plff. is entitled to a divorce from deft. Order for atty fees continued in force until discharged."

The order book entry as of that date is as follows:

"Come now the parties and this cause is now for trial submitted to the Court and the evidence is heard and the court finds for the plaintiff that the material allegations of her complaint are true, and that she is entitled to a divorce from said defendant on the grounds alleged in the complaint. The court orders that all orders heretofore made for the payment of suit and support money continue in full force and effect until the same has been discharged."

Immediately following said minute on the judge's docket, the judge wrote the following minute:

"December 22, 1930. It being shown to the satisfaction of the court that the plff is deceased, this cause is dismissed."

The order book entry of that date is in accordance with said minute.

Aletha Elva Cooper was in fact killed in an automobile accident on October 8, 1930. At the time of her death she was the holder of insurance policies payable to her estate. Appellee Delaware County National Bank was appointed administrator of her estate, and as such administrator collected $ 4,815.79 on said policies.

Appellants are the father, sisters, and children of a deceased brother of said decedent.

On May 7, 1931, appellants instituted a suit against appellees praying "that plaintiffs be declared entitled to inherit in said estate in the shares provided by law to the exclusion of the defendant Cooper."

The complaint alleged that on July 31, 1930, when the court made said minute on his docket showing a finding by the court that the divorce should be granted, the court also made an "oral pronouncement of judgment in said divorce action."

The complaint prayed "that the alleged judgment of divorce be declared valid and legal . . ."

That suit was tried by the court, by a special judge, and a special finding of facts and conclusions of law having been requested, the court made its finding of facts and stated its conclusions of law on January 20, 1933. Plaintiffs filed a motion for new trial. This motion was overruled and judgment was rendered for defendant Cooper on May 17, 1933.

On April 27, 1933, about three months after the court filed its special finding of facts in said cause, appellants filed, in the divorce cause, "an application and motion . . . for an order vacating entry of dismissal and for judgment nunc pro tunc on finding" made by the court in said divorce cause on July...