Moore v. Shook

• Decision Date: 21 December 1916
• Citation: 114 N.E. 592,276 Ill. 47
• Parties: MOORE v. SHOOK et al.
• Court: Illinois Supreme Court

276 Ill. 47

114 N.E. 592

MOORE

v.SHOOK et al.

Supreme Court of Illinois.

Dec. 21, 1916.

Appeal from Circuit Court, Madison County; Louis Bernreuter, Judge.

Suit by Lila Moore against Ella Shook and others. Decree for the defendants on demurrer to the bill, and plaintiff appeals. Reversed and remanded, with directions to overrule the demurrer.

William P. Boynton, of Alton, and L. P. Crigler, of St. Louis, Mo., for appellant.

John J. Brenholt, of Alton, for appellees.

CARTER, J.

This was a bill purporting to be in the nature of a bill of review, filed by appellant in the circuit court of Madison county, praying that a decree of divorce be reviewed and so altered that the date when the evidence was heard and the court's decision pronounced in open court be held to be the date when the decree became effective, rather than the date when the written decree was approved by the judge and thereafter filed with the clerk. A demurrer was sustained to the bill, and this appeal followed.

The allegations of the bill are, substantially, that Dr. Isaac Moore, of Alton, in September, 1911, filed a bill for divorce in the circuit court of Madison county against his wife, Elizabeth Moore, and after an order of default was entered against the defendant a hearing was had December 2, 1911; that at the close of the hearing the judge announced orally that the divorce was granted, and on his docket wrote the following:

‘Cause heard. Court finds deft. guilty of extreme and repeated cruelty. Decree for divorce to complainant. Costs to complainant.’

The bill further represents that the court then ordered a decree prepared in accordance with this finding, but that said formal written decree was not approved by the presiding judge until December 15, 1911, and was not filed by the clerk until December 16, 1911; that December 9, 1912 (which was more than a year after the said oral announcement in the circuit court of Madison county, but less than a year from the approval of the written decree by the judge), Dr. Moore was married to appellant in St. Louis, Mo., and they thereafter moved to Alton, Ill., where they lived together, and Dr. Moore practiced his profession as a physician until the sickness which preceded his death, November 19, 1914; that appellant thereafter was granted letters of administration in the probate court of Madison county, and proceeded with the administering of the estate until December 6, 1915, when appellee Ella V. Shook, a daughter of Dr. Moore by a former marriage, filed a petition in said probate court, alleging that appellant was not the surviving widow of Dr. Moore, and was not entitled to letters of administration; that a hearing was had on this petition, and the probate judge found that appellant and Dr. Moore were married less than a year from the time he was divorced from his former wife, and that by reason thereof said marriage was null and void, and appellant was not entitled to any rights as Moore's widow. The bill further represents that said marriage was entered into in St. Louis in good faith by appellant and Dr. Moore, with no intention to defeat the laws of Illinois nor contravene the public policy of the state; that they believed the divorce had been granted on December 2, 1911, when the hearing was had and the oral announcement made in open court, rather than on December 16, 1911, when the formal written decree was thereafter filed with the clerk for record. The demurrer alleged, among other things, no equity in the bill; that appellant was not a party to the original decree sought to be reviewed; that appellant was not the lawful wife of Dr. Moore; that on the facts alleged here no relief can be given by bill of review. The case has been brought directly to this court on the ground that a freehold was involved as to the ownership of Dr. Moore's real estate.

For practical purposes, bills of review, or bills in the nature of bills of review, are divided into three classes, which are: Bills for error appearing on the face of the record; bills for newly discovered evidence; and bills for fraud impeaching the original transaction. The same principles are generally applicable in this country to all varieties of this species of bills. Harrigan v. County of Peoria, 262 Ill. 36, 104 N. E. 172;Knobloch v. Mueller, 123 Ill. 554, 17 N. E. 696. It is apparent from the facts alleged in the bill in this cause that relief cannot be had by a bill of review or one in the nature of a bill of review, as the error complained of is not based on newly discovered evidence or fraud, and is not for an error appearing on the face of the original record.

However, the bill, while designated a bill of review, contains all the elements required in an original bill asking for relief on the facts stated; that is, it sets out the rights of the complainant, the manner in which she is injured, and contains a clear statement of all the material facts, and while asking for specific relief in changing the original decree, it contains a general prayer, asking for such other and further relief as equity may require and to the court may seem meet. The courts must look to the substance of the bill-its material averments-and the grounds of equity set up in the writing, to determine its true character. Even though the pleader may give it a wrong name, still if the averments show that the complainant is entitled to relief and the prayer will admit of granting the relief which he says he is entitled to claim, he should not be turned out of court unheard. McConnel v. Gibson, 12 Ill. 128;Thomas v. Hebenstreit, 68 Ill. 115. The rule is also in such cases, that although specific relief may be denied, yet under the general prayer such relief may by granted as is justified under the allegations of the bill and to which the proof shows complainant is entitled. Casstevens v. Casstevens, 227 Ill. 547, 81 N. E. 709,118 Am. St. Rep. 291, and cases cited. If appellant, under the allegations of the bill and the facts alleged therein (which, under the demurrer, must be conceded to be true), is entitled to the relief asked for, such relief should not be refused even though the wrong name has been given to the bill filed in the trial court.

Beyond question, the formal, written decree could have been approved by the chancellor and filed for record with the clerk on December 2, 1911, the same day the chancellor orally announced his decision and made the minutes on his docket that the divorce was then granted, and that date would then, without question, have been the date of the decree of divorce. Under the law in this state a decree in equity is not final until approved by the chancellor and filed for record. His mere oral announcement of the decision and the grounds upon which it is based is not controlling. The whole matter is completely under his control, and is subject to be altered, changed, or even disregarded, until the written decree is approved and filed for record. Cameron v. Clinton, 259 Ill. 599, 102 N. E. 1000;Hughs v. Washington, 65 Ill. 245;Waggoner v. Saether, 267 Ill. 32, 107 N. E. 859. It was not necessary that the decree should be signed by the chancellor. Horn v. Horn, 234 Ill. 268, 84 N. E. 904. The decree in the original divorce proceedings between Dr. Moore and his former wife must be held to date from the day the decree was filed for record with the clerk, December 16, 1911, unless and until the records in that divorce cause are changed by proper proceedings in court.

The question then is whether from the minutes entered on the docket of the trial court in the original divorce proceedings the records in that case may be so modified and changed as to consider the final decree as having become effective December 2, 1911, instead of December 16, 1911. After a decree has been entered and the term of court has expired, the usual rule is that it cannot be vacated or amended for the purpose of correcting an alleged error which involves the merits of the case, unless there is something in the original decree which authorizes the court to retain jurisdiction of the case, but mere clerical errors in a decree may be amended at any time upon proper evidence, and a final decree may be amended even after it is entered, in a material point, where the amendment is in a matter which could have been made a part of the decree as a matter of course if it had been asked for when the decree was rendered. 5 Ency. of Pl. & Pr. 1053. The power is inherent in every court having general jurisdiction to correct errors in the making up of its records whereby they fail to express the truth in regard to its proceedings, and this power may be exercised by the court at any time when an error is brought to its attention, when no injury is likely to result to the parties or other persons by its exercise. The court may, even after the expiration of the term at which a judgment was rendered, correct or amend the entry thereof so as to make it conform to the judgment which the court actually rendered. 17 Am. & Eng. Ency. of Law (2d Ed.) 818. This court has held that the trial court at a subsequent term may from its minutes amend and enter an order nunc pro tunc to correct a judgment so that it will show the real judgment in fact rendered. People v. Quick, 92 Ill. 580. The judge's minutes on his docket have always been held by this court sufficient to authorize an entry of a judgment nunc pro tunc at a subsequent term. Metzger v. Morley, 184 Ill. 81, 56 N. E. 299. See, also, McDonald v. Patterson & Co., 190 Ill. 121, 60 N. E. 106;Tosetti Brewing Co. v. Koehler, 200 Ill. 369, 65 N. E. 636;Chicago, Burlington & Quincy Railroad Co. v. Wingler, 165 Ill. 634, 46 N. E. 712;Tynan v. Weinhard, 153 Ill. 598, 38 N. E. 1014;Hogue v. Corbit, 156 Ill. 540, 41 N. E. 219,47 Am. St. Rep. 232. Any amendments permissible under the statute of amendments and jeofails may be proper at a subsequent term, and this applies both to judgments at law and decrees in chancery....