State v. Superior Court of Washington for Kitsap County

• Decision Date: 04 June 1907
• Citation: 90 P. 258,46 Wash. 395
• Parties: STATE ex rel. TUFTON v. SUPERIOR COURT OF WASHINGTON FOR KITSAP COUNTY et al.
• Court: Washington Supreme Court

90 P. 258

46 Wash. 395

STATE ex rel. TUFTON v. SUPERIOR COURT OF WASHINGTON FOR KITSAP COUNTY et al.

Supreme Court of Washington

June 4, 1907

Application of the state of Washington on the relation of Anna Tufton for a writ of mandate against the superior court of the state of Washington for Kitsap county and the judge thereof. Denied.

J. W. Bryan, for relator.

B. B Crawford, for respondents.

FULLERTON J.

This is an application for a writ of mandate. The facts upon which the application is based are in substance these: In the early part of the year 1903 the relator, who was then the wife of one L. C. Merz, began an action against her husband for a divorce. The action proceeded regularly to trial, which was had on February 4, 1903. At the conclusion of the evidence and the argument of counsel, the trial judge announced that a divorce would be granted, announcing at the time the cause upon which the decree would be rested, and the disposition that would be made of the property of the parties. A minute of the announcement was made by the clerk and entered in the minute book. The minute, however, recorded merely that a divorce had been granted. It did not specify either the grounds on which it was granted or the disposition of the property. Counsel for appellant thereupon proceeded to draft formal written findings of fact for the judge's signature and a formal decree for entry in the journal of the court. These were prepared, served upon opposing counsel, and filed with the clerk some two days later. In the meantime the relator and her husband had compromised their difficulties and resumed their relation of husband and wife. The relator called in a mutual friend of herself and her husband, told him she had 'made up' with her husband and did not wish the decree of divorce signed, and requested him to inform the trial judge of that fact. She also notified her own counsel to the same effect.

The friend consulted informed the court of the change in the status of the parties, with the result that neither the findings nor the decree were signed or spread upon the journals of the court. Two years later the relator began another action for divorce against her husband. This action she prosecuted to a finality; the decree of divorce being entered on May 5, 1906, by a visiting judge who was called in specially to try the cause. This decree was rested upon causes of the same nature recited in the earlier findings, but a different disposition was made of the property. On November 16, 1906, the same judge was asked to sign the findings and decree prepared for signature in the first action above mentioned. This the judge refused to do, and the present proceedings were instituted to procure a writ of mandate requiring them to be signed.

The relator bases her claim to the writ on the contention that a decree of divorce was awarded her by the court on the first trial, valid and conclusive in every particular, save only that formal entry thereof was not made on the record, and that now she has the right to have the decree perfected by an entry nunc pro tunc of the formal decree. Doubtless a court of general...