Perkins v. Perkins

• Decision Date: 04 January 1917
• Parties: PERKINS v. PERKINS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

225 Mass. 392

114 N.E. 713

PERKINS

v.PERKINS.

Supreme Judicial Court of Massachusetts, Plymouth.

Jan. 4, 1917.

Appeal from Superior Court, Plymouth County; John H. Hardy, Judge.

Divorce by Nellie M. Perkins against Harry K. Perkins. From a ‘modified decree,’ revising a decree respecting custody and support of children made in connection with the divorce, libellee appeals. Affirmed.

Robt. H. O. Schulz, of Boston, for appellant.

RUGG, C. J.

This is an appeal from a ‘modified decree’ entered by a judge of the superior court revising a decree respecting custody and support of children made in connection with a divorce. On June 4, 1907, a decree was entered which, among other matters respecting alimony, custody and support of children, ordered that the libellee pay ‘the expense of necessary medical attendance to be rendered by Dr. Burley.’ In 1911 it became necessary for one of the children to be treated by an oculist and Dr. Ryder was employed for this purpose. It was held in Ryder v. Perkins, 219 Mass. 525, 107 N. E. 387, that the defendant, who is the libellee in the case at bar, was not liable under the terms of the decree for the services so rendered. When Ryder v. Perkins came on for further hearing in the superior court after the decision, a motion was made by counsel for the plaintiff, who was also counsel for the libellant in the divorce case, for a revision of the decree in the divorce case so as to include an obligation upon the libellee to pay the ‘necessary medical expenses for treatment of the two minor children * * * which have occurred up to the date of this decree.’ The divorce case was not then before the court, although before that time a motion has been made therein for a revision of the decree relative to medical service for the children. That motion had been heard and a written decision made by the judge, although no decree had been entered, but nothing had been said by the judge or parties about a nunc pro tunc entry. On November 4, 1915, a decree was entered modifying the earlier decree by increasing the monthly payments to be made to the libellant by the libellee ‘for the support, maintenance, and providing the necessary medical attention for said minor children.’ The earlier decree was further modified so that ‘the mother is to be allowed to make the selection of proper medical attendance for the care of said children, which modification is to take effect as of the last Monday of December, 1910.’

The function of a nunc pro tunc order in general is to put upon the record and to render efficacious some finding, direction or adjudication of the court made actually or infentially at an earlier time, which by accident, mistake or oversight was not made matter of record, or to validate some proceeding actually taken but by oversight or mistake not authorized, or to prevent a failure of justice resulting, directly or indirectly from delay in court proceedings subsequent to a time when a judgment, order or decree ought to and would have been entered, save that the cause was pending under advisement. Patterson v. Buckminster, 14 Mass. 144;Perry v. Wilson, 7 Mass. 393;Terry v. Briggs, 12 Cush. 319;Tapley v. Martin, 116 Mass. 275;Mitchell v. Overman, 103 U. S. 62, 26 L. Ed. 369;Martin v. Tapley, 119 Mass. 116;Rugg v. Parker, 7 Gray, 172. Exemplifications of various aspects of this rule are found in the entry of nunc pro tunc orders in cases where, after verdict but before final judgment, a statute on which liability was founded has been repealed (Springfield v. Worcester, 2 Cush. 52, 62;Whiting v. Whiting, 114 Mass. 494), a defendant has deceased in an action which did not survive (Tapley v. Goodsell, 122 Mass. 176, 181;Kelley v. Riley, 106 Mass. 339, 8 Am. Rep. 336;Reid v. Holmes, 127 Mass. 326, 328;Wilkins v. Wainwright, 173 Mass. 212, 53 N. E. 397), the statute of limitations has run in a case reversed on writ of error (Curran v. Burgess, 155 Mass. 86, 28 N. E. 1135), and a mistake has been made as to interest (New Orleans v. Warner, 176 U. S. 92, 20 Sup. Ct. 280, 44 L. Ed. 385). Where a receiver has omitted to procure an antecedent order authorizing the conduct of litigation by him in the court of another jurisdiction, ‘an order nunc pro tunc submitting the question so litigated to that court’ has been made. Attorney General v. American Legion of Honor, 196 Mass. 151, 163, 81 N. E. 966. Judgment upon a bond which ought to have been entered before reference to an assessor, but which was not so entered, may be made to take effect as of an earlier day. Choate v. Arrington, 116 Mass. 552;Donaher v. Flint, 188 Mass. 525, 528, 74 N. E. 927. See, also, Cowley v. McLaughlin, 137 Mass. 221, and Russia Cement Co. v. LePage Co., 174 Mass. 349, 354, 55 N. E. 70. Where a statute required commissioners to be appointed by the court within a certain time, and the proceeding, although seasonably begun, was contested as to its constitutionality until after the time limited had expired, appointment was made to take effect as of an earlier date. Agawam v. Hampden, 130 Mass. 528, 539. Since St. 1885, c. 384, § 13, now R. L. c. 177, § 4, it has been provided by express statute that the superior court may order every judgment, order or decree ‘to be entered as of an earlier day than the day of the entry.’

Our decisions have gone quite as far as those of other states in the allowance of nunc pro tunc orders and decrees. The rule sometimes has been stated in narrower terms than that here made, although decisions of other jurisdictions perhaps are not in conflict with our own....