Tikalsky v. Tikalsky, 25156.

• Decision Date: 01 April 1926
• Docket Number: No. 25156.,25156.
• Citation: 208 N.W. 180,166 Minn. 468
• Parties: TIKALSKY v. TIKALSKY.
• Court: Minnesota Supreme Court

208 N.W. 180

166 Minn. 468

TIKALSKY v. TIKALSKY.

No. 25156.

Supreme Court of Minnesota.

April 1, 1926.

Appeal from District Court, Le Sueur County; C. M. Tifft, Judge.

Suit by Mary A. Tikalsky against John Tikalsky for a limited divorce and for maintenance, in which the defendant filed a cross-complaint asking for an absolute divorce from the plaintiff. From a judgment of divorce entered after the death of the defendant as of a date prior to his death, plaintiff appeals. Affirmed.

Charles C. Kolars, of Le Sueur Center, and Thomas Hessian, of Le Sueur, for appellant.

Geo. F. Sullivan, of Jordan, for respondent.

TAYLOR, C.

The plaintiff and defendant were married in January, 1919. Both had been previously married and were well along in years. In December, 1919, plaintiff brought this suit asking for a limited divorce from defendant, and for an allowance for maintenance out of his property. Defendant interposed a cross-complaint, asking for an absolute divorce from plaintiff. In July, 1920, the court made findings of fact to the effect that the charges made by plaintiff against defendant were not true, and that the charges made by defendant against plaintiff were true, and that plaintiff had received certain sums from defendant and was not entitled to any further allowance of alimony out of his estate. Upon these findings, the court made the following conclusions of law and order for judgment:

"That plaintiff is not entitled to any relief in this action, and that defendant is entitled to judgment adjudging and decreeing that the bonds of matrimony now and heretofore existing between plaintiff and defendant be forever dissolved, and awarding to defendant an absolute divorce from plaintiff. Let judgment be entered herein accordingly."

Plaintiff made a motion for a new trial, which was denied August 12, 1920. She served a notice of appeal, but failed to perfect the appeal, and it was dismissed. Defendant died testate in June, 1924, and by his will gave his property to his children by a former marriage. Thereafter it was discovered that judgment had not been entered in the divorce suit, and, in December, 1924, plaintiff filed in the probate court a claim to the share of defendant's estate given to a surviving wife by the laws of descent. In February, 1925, the special administrator of defendant's estate and the devisees under his will petitioned the district court to be substituted as defendants in the divorce suit and for the entry of judgment therein nunc pro tunc as of September 15, 1920. The court granted the petition, and in June, 1925, judgment of divorce was entered as of the date of September 15, 1920. Plaintiff appealed from the judgment.

It is true, as claimed by plaintiff, that a suit for divorce abates at the death of either party, as the marriage relation sought to be dissolved no longer exists. And it is also true that a judgment cannot thereafter be entered therein nunc pro tunc unless the complainant was clearly entitled to have such judgment entered while both parties were living. Strickland v. Strickland, 97 S. W. 659, 80 Ark. 451; Estate of Seiler, 128 P. 334, 164 Cal. 181, Ann. Cas. 1914B, 1093; Danforth v. Danforth, 111 Ill. 236, 243; McCurley v. McCurley, 60 Md. 185, 45 Am. Rep. 717; Wilson v. Wilson, 41 N. W. 817, 73 Mich. 620; Heck v. Bailey, 169 N. W. 940, 204 Mich. 54; Kimball v. Kimball, 44 N. H. 122, 82 Am. Dec. 194; Dunham v. Dunham, 89 A. 281, 82 N. J. 395; Matter of Crandall, 89 N. E. 578, 196 N. Y. 127, 134 Am. St. Rep. 830, 17 Ann. Cas. 817, and note.

In some of the cases statements are made to the effect that no judgment can be entered after the death of one of the parties, as no decree of divorce can be granted after the marital status has been terminated by death, and other matters are involved only as incidental to such a decree.

Several courts, however, hold that, where the trial court had determined the questions of fact and directed the entry of a judgment of divorce, and the complainant was entitled to have it entered while both parties were living, it may be entered nunc pro tunc as of a date within the lifetime of the deceased, at the instance of parties whose rights are affected thereby, for the purpose of determining and fixing property rights or legalizing proceedings taken in the belief that the parties were divorced. Zahorka v. Geith, 109 N. W. 552, 129 Wis. 498; In re Cook, 17 P. 923, 19 P. 431...