Young v. Young

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

65 S.W. 1016

165 Mo. 624

YOUNG v. YOUNG et al., Appellants

Supreme Court of Missouri, First Division

December 17, 1901

Appeal from St. Louis City Circuit Court. -- Hon. Selden P. Spencer Judge.

Affirmed.

Frank M. Estes and Davis Biggs for appellants.

(1) A judgment of divorce becomes valid when pronounced by the court, and it need not be in writing or signed by the judge. In re Estate of Cook, 77 Cal. 220; s. c., 83 Cal 415; Fox v. Hale & Norcross Silver Min. Co., 108 Cal. 478; Holt v. Holt, 107 Cal. 258; Franklin v. Merida, 50 Cal. 289. (2) The plaintiff, Lulu Young is not the lawful widow of Charles H. Young, the nunc pro tunc decree of divorce being valid under the laws of California. In re Estate of Cook, supra; Fox v. Hale, etc., supra. The decree of divorce being valid, the court was without jurisdiction to vacate and set aside said decree after the death of Charles H. Young. The California court did not have the authority and power to vacate its decree, which it had entered nunc pro tunc after the death of Charles H. Young, without proper notice. Code of Civil Procedure of California, sec. 73; Kirschner, Admr., v. Dietrich, 110 Cal. 502; Scammon v. Bonslett, 118 Cal. 93; People v. Green, 74 Cal. 400; Bostwick v. McEvoy, 62 Cal. 502; Wharton v. Harlan, 68 Cal. 422; Freeman on Judgments, sec. 72; Grier v. Jones, 54 Ga. 154. (3) In an action upon a judgment rendered in a sister State, the jurisdiction of the court may always be inquired into. Want of jurisdiction may be shown as to subject-matter or parties, although the record may recite facts necessary to give the court jurisdiction. Eager v. Stover, 59 Mo. 89; Napton v. Leaton, 71 Mo. 358; Bradley v. Welch, 100 Mo. 258. (4) Under the Constitution of California, terms of court are abolished, the courts are always open, and the sessions are continuous. Code of Civil Procedure, secs. 73, 74; In re Gammon, 68 Cal. 545. (5) Findings of fact required under California statute may be waived by stipulation signed by counsel duly authorized. Code of Civ. Pro. of California, sec. 634.

Judson & Green for respondent.

(1) It appears from the facts in evidence that the said superior court of Los Angeles county was without jurisdiction or power to render and file a judgment or decree of divorce in said cause, after the death of Charles H. Young, and had no jurisdiction to order the same entered in its judgment roll nunc pro tunc as of September 4, 1897. (a) Because the oral announcement of the court on September 4, and its directions to plaintiff's attorneys about the preparation and submission of findings of fact and a decree of divorce, were not the rendition of a final judgment in favor of plaintiff. Broder v. Conkling, 98 Cal. 360; Harvester Works v. Insurance Co., 98 Cal. 559; Crim v. Kessing, 89 Cal. 478; San Joaquin Land Co. v. West, 99 Cal. 345; Saxton v. Smith, 50 Mo. 490; Belkin v. Rhodes, 76 Mo. 643. The language used by the court at that time, as shown by defendant's evidence, clearly indicates that the court reserved its judgment until the submission of findings of fact. Broder v. Conkling, 98 Cal. 360. (b) Because under the California code a final judgment is not rendered in a case which is tried by the court without a jury, until the court has made up and filed with the clerk its written findings of fact and conclusions of law, except in cases of default, where no written findings of fact are required by the statutes. California Code of Civil Procedure, secs. 622, 633 and 634; Crim v. Kessing, 89 Cal. 478; Connolly v. Ashworth, 98 Cal. 205; San Joaquin Land Co. v. West, supra; Mace v. O'Reilly, 70 Cal. 231. (c) Because this action abated immediately upon the death of Charles H. Young, and a judgment can not be entered nunc pro tunc, after the death of one of the parties to a cause, in an action which does not survive, unless a final judgment had been completely rendered in the cause during the lifetime of the parties, and unless nothing remains to be done except the ministerial act of the clerk in entering on the judgment roll the final judgment so completely rendered by the court during the lifetime of the parties. In re Cook, 77 Cal. 229; Kirschner v. Dietrich, 110 Cal. 502. (d) Because a nunc pro tunc entry or amendment must always be based upon record evidence, and the record evidence did not show a waiver of finding of fact by the parties on September 4, 1897. On the contrary, the minutes of the court's proceedings on that day, if correctly entered, must have shown that such findings of fact were not waived by the parties, but were ordered prepared by the court, and to be thereafter submitted to him for approval, and that the court reserved its judgment until the submission of these findings of fact. Hegelar v. Henckel, 27 Cal. 491; Hansbrough v. Fudge, 80 Mo. 307; Witten v. Robinson, 31 Mo.App. 525; Danforth v. Railroad, 123 Mo. 196; Bryant v. Jackson, 80 Mo. 318. (2) The said court was therefore without jurisdiction to render any judgment in said case on December 10, 1897, and the said judgment so rendered and entered nunc pro tunc as of September 4, 1897, was and is absolutely null and void, and the court which rendered it could set it aside and relieve Mrs. Young from its prejudice at any time thereafter, either of its own motion, or at her request, without notice to any one. People v. Greene, 74 Cal. 400; Broder v. Conkling, 98 Cal. 360; Mace v. O'Reilley, 70 Cal. 231; McNair v. Biddle, 8 Mo. 257; Napton v. Leaton, 71 Mo. 358; Abbott v. Sheppard, 44 Mo. 273. (3) If said judgment and decree was and is null and void for want of jurisdiction in said court to render it, it is without force or effect in this case, whether or not it has ever been properly set aside and vacated by the court which rendered it. Higgins v. Peltzer, 49 Mo. 152; Marx v. Fore, 51 Mo. 69; Eagers v. Stover, 59 Mo. 87. (4) If the said court had any power or jurisdiction to order the entry of a nunc pro tunc judgment on December 10, 1897, it must necessarily have had power to vacate and set aside such order for good cause, upon notice to those parties at whose request it had been made and entered. Certainly it could set aside the stipulation waiving findings of fact, upon which the right to enter a nunc pro tunc judgment depended.

OPINION

MARSHALL, J.

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. McCullagh. The plaintiff claims as widow of Charles H. Young, who was a nephew of McCullagh. 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 August 23, 1897, and completed and the case submitted on September 4, 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 seventh of September. When the matter was again taken up on the seventh 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 seventh and the seventeenth 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 provisions 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 seventeenth 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 (secs. 632, 633, Code of Civil Procedure of California), 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 five hundred dollars, 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...