Young v. Young

• Decision Date: 17 December 1901
• Citation: 65 S.W. 1016,165 Mo. 624
• Parties: YOUNG v. YOUNG et al.
• Court: Missouri Supreme Court

65 S.W. 1016

165 Mo. 624

YOUNG v. YOUNG et al.

Supreme Court of Missouri, Division No. 1.

December 17, 1901.

JUDGMENTS — PAROL EVIDENCE — FINAL JUDGMENT — WRITTEN FINDING OF FACT — JUDGMENT NUNC PRO TUNC.

1. Parol evidence of the rendition of an oral judgment is inadmissible.

2. Where the court announced at the close of trial that he would give a certain judgment, but no memorandum or other record of such judgment was made, a subsequent judgment nunc pro tunc was void.

3. Where at the close of trial in a divorce case the court announced orally that he would grant a divorce, but reserved the question of the amount of an allowance for the support of a child and for fees for the wife's attorney till a later date, there was no final judgment, so that the subsequent entry of judgment nunc pro tunc as of the date of the oral announcement was void.

4. Under Code Civ. Proc. Cal. § 632, providing that, on trial of a question of fact by the court, its decision must be given in writing, and filed with the clerk within 30 days after the cause is submitted, a mere oral statement by the court that he would grant a divorce in a suit, the facts of which were tried by him, was not a final judgment, and the subsequent entry of a decree nunc pro tunc as of the date of such oral statement was void.

Appeal from St. Louis circuit court; Selden P. Spencer, Judge.

Action by Lulu Young against John C. Young and others. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This is an action for the partition of certain land in the city of St. Louis, being a part of the estate of Joseph B. McCullogh. The plaintiff claims as widow of Charles H. Young, who was a nephew of McCullogh. The controversy turns upon whether the plaintiff is the widow of Charles H. Young, and the determination of this question depends upon the proceedings in a suit for divorce in the courts of the state of California wherein Charles H. Young was the plaintiff, and Lulu Young, the plaintiff herein, was the defendant. The record before this court shows the facts bearing upon the divorce case to be as follows: The trial of the divorce case was begun by the judge of the California court, a jury being waived, on the 23d of August, 1897, and completed and the case submitted on the 4th of September, 1897, and thereupon the judge announced orally from the bench that he would grant a divorce to the plaintiff therein, Charles H. Young, but that, owing to Young's ill health, the custody of the child would be awarded to the mother, the defendant therein. A discussion then arose as to the amount to be paid by the father for the support of the child, and the judge said he would fix that in signing the findings. The defendant's counsel then asked for an allowance as attorney's fees. The plaintiff's counsel denied the power of the court to make any such allowance. The judge said he would fix that, also, when he signed the findings, and directed the attorneys for Young to prepare findings and submit them to him on the 7th of September. When the matter was again taken up, on the 7th of September, it was suggested to the court that Young had died early that morning. The judge was of opinion, and Mrs. Young's attorneys contended, that the action abated by the death of Young. On the other hand, Young's attorneys contended that the court had power to enter the divorce decree nunc pro tunc as of September 4th. The matter was laid over for further argument until September 17th. Between the 7th and the 17th of September Mrs. Young instructed her attorneys to make no further opposition to the decree being entered, as the will of Young had made suitable provision for their child, and that was her principal object in contesting the divorce case. The power of the court to enter a decree nunc pro tunc was fully argued on the 17th of September. The counsel for Mrs. Young, acting against her instructions, still contended that the court had no such power, and that the action had abated; and it appearing that no findings had been made, as the Code of California requires when a case is tried by the court without a jury (sections 632, 633, Code Civ. Proc. Cal.), the judge suggested that, if Mrs. Young's attorneys would waive a finding, it would be sufficient, under section 634 of the Code. Counsel for both parties then signed a written waiver of the filing of findings, and dated it as if it had been signed on September 4th, but it was not filed until December 11th. The court then took the matter under advisement until December 11th, when he entered a decree of divorce in favor of Young, gave Mrs. Young the custody of the child, and allowed her attorneys a fee of $500, and entered the decree nunc pro tunc as of September 4, 1897. These matters appear from the testimony of the several attorneys in the case. The only evidence of record pertaining thereto is embraced in the decree, which recites that the trial began on the 23d of August, and was completed and the cause taken under advisement on the 4th of September, and that the decree was entered on December 11, as of September 4, 1897. Thereafter, on the 20th of January, 1898, upon motion of new counsel for Mrs. Young, — the former counsel for Mr. Young being present at the hearing, — the court vacated the decree of divorce, and found that the waiver of findings was unauthorized by Mrs. Young, and that the court had no jurisdiction to enter the decree of divorce, because the action abated by the death of the plaintiff, Young, before the decree was entered. Thereupon Mrs. Young instituted this suit in partition against McCullogh's heirs and his administrator. The circuit court rendered judgment for the plaintiff, and the defendants appealed.

Frank M. Estes and Davis Biggs, for appellants. Judson & Green, for respondent.

MARSHALL, J. (after stating the facts).

The decisive question in this case is the power of the California court to enter a divorce nunc pro tunc after the death of the plaintiff in that case. In Railway Co. v. Holschlag, 144 Mo., loc. cit. 256, 45 S. W. 1101, 66 Am. St. Rep. 418, this court, speaking through Williams, J., said: "It is not disputed, nor can it be, that the settled law of this state is that entries nunc pro tunc can only be made upon evidence furnished by the `papers and files in the cause, or something of record, or in the minute book or judge's docket,' `as a basis to amend by.' Gamble v. Daugherty, 71 Mo. 599." The parol testimony introduced in this case was wholly incompetent, and should have been excluded. Judgments of courts cannot be supported by parol testimony, and judgments nunc pro tunc can only be entered where there is something of record which furnishes "a basis to amend by." But, even if such evidence was admissible, it would be unavailing to support the defendants' contention in this case; for it shows that prior to September 7th the California court had arrived at no final determination of the divorce case, but, on the contrary, expressly reserved the question of the allowance for the support of the child and for attorney's fees until the 7th of September, and that the plaintiff died before the court convened on the 7th, and before any conclusion as to these questions had been reached. So that it plainly appears that no judgment had been determined upon — much less, announced, or any memorandum made — before the action abated by the death of the plaintiff therein, Mr. Young. In that race for the dissolution of the marriage bonds the "grim reaper" distanced the "divorce mill." There was nothing among the papers and files in the cause, nothing of record, nothing in the minute book or judge's docket, that could be looked to as a basis for a decree nunc pro tunc. The only thing that appeared in this way was what the decree itself, entered on December 11th, shows; and that is that the trial began on August 23d, and was completed on September 4th, and the case was then taken under advisement, and the decree was entered on December 11th. This shows no order, decree, or judgment made or determined upon prior to Young's death. But, as this decree was entered after his death, it could not be self-serving, so as to afford a basis for a nunc pro tunc entry. It is true that the testimony of one of the counsel (Mr. Marble) shows that when the matter was being discussed, on the 11th of December, and the allowance to the child was being discussed, "the court looked at the decree, and asked as to the provisions of the order of September 4th, whereupon I had the clerk of the court bring in the minutes of that day and read aloud the entry," from which it may be argued that on September 4th an order of some kind was made and entered on the minutes of the clerk on that...