The neglect of parties to divorce suits to file the interlocutory decree in their respective suit on the day of rendition or promptly, and, in order to remedy such omission, the procuring at some subsequent time of the entry of the interlocutory decree nue pro tune as of the date of rendition, the entry of final decrees on the last day of the period of six months which must elapse before a final decree may be lawfully entered, are practices of omission or commission common enough, and which so vitally concern the status of the parties interested, as to deserve the most serious consideration

Hackman, F. C.

English

UW Law Digital Commons (University of Washington)

Washington Law Review Volume 3 Number 3 7-1-1928 Time of Entry of Interlocutory Decree of Divorce as Affecting Date of Final Decree F. C. Hackman Follow this and additional works at: https://digitalcommons.law.uw.edu/wlr  Part of the Civil Procedure Commons, and the Family Law Commons Recommended Citation F. C. Hackman, Notes and Comments, Time of Entry of Interlocutory Decree of Divorce as Affecting Date of Final Decree, 3 Wash. L. Rev. 145 (1928). Available at: https://digitalcommons.law.uw.edu/wlr/vol3/iss3/4 This Notes and Comments is brought to you for free and open access by the Law Reviews and Journals at UW Law Digital Commons. It has been accepted for inclusion in Washington Law Review by an authorized editor of UW Law Digital Commons. For more information, please contact cnyberg@uw.edu. WASHINGTON LAW REVIEWPublished Quarterly by the Law School of the University of WashingtonFounded by John T Condon, First Dean of the Law SchoolSUBSCRIPTION PRICE $2.50 PER ANNUM, SINGLE COPIES $1.00Advisory BoardDEAN ALFRED J. SCHWEPPE, PROFESSORS LESLiE J. AYER, CLnRx P. BIssETT,IvAN W GooDNER, HARVEY LANTZ, RUDOLF H. NOTTELmAN,J. GRATTon O'BRYAN and LIBRAR.AIN ARTHUR S. BEARDSLEYEditorial BoardBRYANT BRADY, PrestientALFRED E. HARSCH, Article Editor WLiAm E. EvENsoN, Case EditorFiANx P. WEAVER, Note Editor RICHARD S. STRONG, Book EditorGEORGE F. ADEL RAY L. JOHNSONWESLEY S. GLENN MAURICE W. KiNZELELm:ER GOERING MARION A. MARQUISJ. GORuON GOSE H. S. SANFORDGORDON METCALFE, Business ManagerNOTES AND COMMENTTIME OF ENTRY OF INTERLOCUTORY DECREE OF DIVORCE ASAFFECTING DATE OF FINAL DECREE. The neglect of parties todivorce suits to file the interlocutory decree in their respective suiton the day of rendition or promptly, and, in order to remedy suchomission, the procuring at some subsequent time of the entry of theinterlocutory decree nue pro tune as of the date of rendition, theentry of final decrees on the last day of the period of six monthswhich must elapse before a final decree may be lawfully entered, arepractices of omission or commission common enough, and which sovitally concern the status of the parties interested, as to deservethe most serious consideration.Section 988-1 of Remington's Compiled Statutes of Washington(chapter 109, Laws of 1921), the act which established the proceed-ings now in effect governing divorce, provides."At any time after six months have expired, after theentry of such interlocutory order, and upon conclusion ofan appeal, if taken therefrom, the court, on motion ofeither party, shall confirm such (interlocutory) order andenter a final judgment granting an absolute divorce, fromwhich no appeal shall lie."It will be observed that this statute authorizes the entry of finalWASHINGTON LAW REVIEWjudgment at any time "after six months have expired after theentry of" the interlocutory decree. It must be borne in mindthat the word "entry" as used in the quoted section has a definitemeaning in this jurisdiction. A judgment is "made or rendered"when the court announces its decision, and the judgment is "en-tered" when the decision expressed in writing and signed by thecourt-the formal written judgment-is "filed" with the clerk ofthe court.' In view of this signification of the word "entry," it ismanifest that a final decree cannot be had prior to the expiration ofsix months from the time a formally written interlocutory decree,signed by the judge, has been filed with the clerk. In other words,a final decree of divorce cannot be secured until after six monthshave expired after the filing with the clerk of the court of theinterlocutory order granted in the suit. And, of course, a finaldecree cannot be obtained while an appeal from the interlocutorydecree is pending. The date of filing the interlocutory decree mustbe taken as the date from which the six months must be computed,and not the date on which the interlocutory decree was signedby the court. This view is supported by decisions in Californiafrom which the divorce law of this (Washington) state was de-rived. There the statute provides"When one year has expired after the entry of suchinterlocutory judgment, the court on motion of eitherparty, or upon its own motion, may enter the final judg-ment granting divorce, * *, but if any appeal is takenfrom the interlocutory judgment or motion for a newtrial, final judgment shall not be entered until such mo-tion or appeal has been finally disposed of, nor then, ifthe motion has been granted or judgment reversed."2In a divorce suit there, after trial, the court entered an order inthe minutes reciting, "it is ordered by the court that an interlocu-tory decree of divorce be entered herein in favor of the plaintiffon the grounds of defendant's wilful neglect and desertion." Nofindings were filed, no further proceedings had, and no deereeentered. More than a year after the making of the minute entry,motion was made for a final decree, which was denied. On appealthe Supreme Court of California said"We hold that the proper construction of section 132of the Civil Code (above quoted), " I I an interlocutorydecree of divorce must be entered in the judgment bookone year before a final decree can be granted. 0 * *"3Since the period of six months begins to run only from the timeof actual entry of the interlocutory decree, an interlocutory decreecannot be entered nunc pro tune as of the day it was renderedbut not then actually entered, and be made effective as of thatday to start the running of the six months. This period will begin'Morley v. Morley, 130 Wash. 77, 226 Pac. 132 (1924) Brown v.Brown, 31 Wash. 397, 72 Pac. 86 (1903) Quarles v. Seattle, 26 Wash. 226,66 Pae. 389 (1901).2Sec. 132, Cal. Civ. Code.Smith v. Superior Court, 147 Cal. 336, 82 Pac. 79 (1905)NOTES AND COMMENTto run only from the actual date of entry of the interlocutory de-cree. Tins is the rule in California. In a case there, an interlocu-tory decree of divorce was entered September 15, 1904, nune protune as of September 4, 1903. On September 21, 1904, the plain-tiff applied for a final decree, winch was refused on the groundthe formal interlocutory decree entered nune pro tune as of Sep-tember 4, 1903, was not in fact or actually entered until September15, 1904, that, therefore, one year had not passed since the dateof actual entry, and that it was the latter date, and not the theoreti-cal entry thereof winch fixed the time from which the period shouldrun for entry of final decree. Of tins state of facts, the SupremeCourt of California said."We think the defendant is correct in is position thatthe year winch must elapse before final judgment can begiven begins to run from the time of actual entry of theanterloeutory judgment, and not from any theoretical nunepro tune date of entry "IIn another case, the suit was tried June 28, 1909. On June 28,1910, the interlocutory decree was signed, together with an order"that the foregoing decree be entered nune pro tune as of June 28,1909." Tis decree was entered July 5, 1910, as of June 28, 1909.On July 1, 1910, a final decree of divorce purporting to be basedupon the interlocutory decree so entered nunc pro tune was signedby the judge, and entered July 6, 1910. On November 12, 1912,the court, on its own motion, entered an order setting aside andvacating said final decree, "because it was entered within a weekafter the actual entry of the interlocutory decree of divorce."Considering an appeal from tins order, the appellate court said,"if .. -- an interlocutory decree in like form as the onethat was entered in 1910, had been signed on June 28,1909, by the judge who tried the case, and had been de-livered to the clerk for filing, and if without filing orentry of such decree the same was lost by the clerk, thesewould be circumstanees strongly appealing to the courtin the exercise of its judgment favorably to the request ofthe plaintiff that the decree be entered as of the dateof the trial."It is well established that, where a judgment has beenrendered and its entry omitted, it may be subsequentlyentered, and, if justice requires, may be made to takeeffect nune pro tune as of the date it was actually made.(Cites cases.)"The order setting aside the final decree is not necessar-ily based upon the lack of authority of the court to enterits interlocutory decree nune pro tune as of the date whenit was rendered, but is based upon the ground that thecourt has no power to enter a final decree until the ex-piration of one year after the entry of the interlocutorydecree."I Claudius v. Melvin, 146 Cal. 257, 79 Pac. 897 (1905).WASHINGTON LAW REVIEWAnd the court further said (quoting Spencer v. Troutt5 )" 'It hardly requires argument or authority to establishthe proposition that a court cannot by antedating anorder, or the entry of it, cut off the right of a party tomove for a new trial, to move to set the judgment aside, orto appeal. These rights, * * * cannot be lost to a partyby such action, whether the effect was designed or not.'9 * * while the power of a court over its records, inorder to make them speak the truth, is fully recognized,and for that purpose errors or omissions in the entry ofjudgments may in some instances be corrected by enter-ing them as of the date when rendered, the full effectof the nunc pro tune order is limited so as to prevent re-sults not contemplated by the law There seems to be noreason why such limitation should not apply to the estab-lished time when the right to a final judgment of divorcewill accrue, in the same manner that it applies to thetime when an appeal may be taken, * * '-it * :r we are satisfied * - * that a final decree ofdivorce could not be entered until one year after theactual entry of the interlocutory decree. The languageof section 131 contemplates that a final decree shall notbe entered until after the expiration of the time in whichan appeal may be taken from the interlocutory decree,nor during the pendency of such appeal if taken. As wehave seen, the entry of the interlocutory decree nunc protune as of the earlier date does not affect the time pre-scribed within which an appeal may be taken.6The provisions of the divorce law"interpreted in the light of previous legislation and deci-sions and the purpose to be accomplished by the law, areclearly to be understood as a limitation on the powerof the court in the matter, and as intended to forbid theentry of a final judgment until after the prescribedperiod. * * I"The law in question was intended as a limita-tion upon the power of the court with respect to the sub-ject-matter, so that the court shall not be competent togrant a final divorce at any time during the year suc-ceeding the interlocutory judgment, and as to requirethat the interlocutory judgment be first entered. The parties could not waive these proceedings, nor invest powerin the court by their consent or acquiescence. The purpose of the statute is to provide that in any event andunder all circumstances there shall be an interval of oneyear after the party is declared to be entitled to a divorcebefore it can become absolute.7Spencer v. Troutt, 133 Cal. 605, 65 Pac. 1083 (1901)6 Nolte v. Nolte, 29 Cal. App. 126, 154 Pac. 873 (1915).'Gran nx v. Superior Court, 146 Cal. 245, 79 Pac. 891, 894, 895, 106 Am.St. Rep. 23 (1905)NOTES AND COMMENTThe foregoing interpretation of the law"necessarily leads to the conclusion that a final decree ofdivorce could not be entered until one year after the actualentry of the interlocutory decree."'8 (Italics ours.)That the California decision in Nolte v. Nolte, supra, may andshould be regarded as a sound precedent in this (Washington)state, is manifest when it is considered that here the time forappeal from a final judgment (and an interlocutory decree ofdivorce is such under the divorce statute), begins to run fromthe time the judgment is "entered", that is, from the day theformal written judgment, signed by the court, is filed with theclerkY And the Supreme Court of this state has declared."An appellant cannot be deprived of his right of ap-peal by the entry of a nunc pro tune order. If this werenot so, he could be deprived of his right of appeal by thecourt taking under advisement the determination of amotion for a new trial for a period of ninety days orlonger, and then entering a nune pro tune order." 10In New York the statute provides a final decree of divorce maybe obtained three months "after the entry" of the interlocutorydecree. It is there held an interlocutory decree cannot be enterednune pro tune to effect an entry as of that date, for"If an interlocutory decree may be entered nune pro tune,there is no logical reason why it may not be actually en-tered the day before the final decree is entered. The sub-version of the purpose of the (statute) which would thusbe possible, ' * * affords sufficient reason for refusing toadopt the practice of entering nune pro tune an interlocu-tory decree of divorce.""There are decisions holding a divorce decree may be enterednune pro tune, 2 but these are not precedents here. In some of thesecases' 3 the statutes considered made judgments effective when ren-dered, and made it the clerk's duty to enter judgments when an-nounced or rendered. Nune pro tune entries were allowed toremedy omissions of the clerk. In another one 4 the court had$Nolte v. Nolte, note 6.9Mathison v. Anderson, 107 Wash. 617, 182 Pac. 622 (1919) Reynoldsv. Pacific Marine Ins. Co., 105 Wash. 666, 178 Pac. 811 (1919) Rupe v.Kemp, 99 Wash. 371, 169 Pac. 871 (1918) Crawford v. Seattle R. & S. Ry.Co., 92 Wash. 670, 159 Pac. 782 (1916) Gust v. Gust, 70 Wash. 695, 127Pac. 292 (1912) Robertson v. Shine, 50 Wash. 433, 97 Pac. 497 (1908).20Reeves v. Wilson, 105 Wash. 318, 177 Pac. 825 (1919)."Townsend v. Townsend, 100 N. Y. S. 464 (1906)."In re Cook's Estate, 77 Cal. 220, 17 Pac. 923, 19 Pac. 431, 11 Am. St.Rep. 267, 1 L. R. A. 567 (1888), (This under an earlier statute having pro-visions unlike that now in force in that state, which latter is the one con-strued in the other California decisions heretofore cited) Mock v. Chaney,36 Colo. 60, 87 Pac. 538 (1906) Moster 'v. Moster 53 Mo. 326 (1873)Curnen v. Curnen, 155 App. Div. 536, 140 N. Y. S. 805 (1913), (construingMassachusetts law) Rush v. Rush, 97 Tenn. 279, 37 S. W 13 (1896)Zahorka v. GeitA, 129 Wis. 498, 109 N. W 552 (1906)" In re Cook's Estate, Mock v. Chaney, Rush v. Rush, Zahorka v.Geith, all in note 12." Moster v. Moster, note 12.WASHINGTON LAW REVIEWdenied a divorce, but the. clerk's entry of judgment showed adivorce was granted, and a nune pro tune entry allowed to correctthis error. In yet another of these eases' the statute provided fora decree nisi, to be final in six months unless the court orderedothbrwise, and by statute nune pro tune entry of judgment wasauthorized. The difference between the system of entering judg-ments in this state, and the system obtaining in California and con-sidered in the case of Cook's Estate,16 is made plain by the state-ment of the latter system in this case. It is therein said"The judgment is a judicial act of the court, the entryis the ministerial act of the clerk. The judgment is asfinal when pronounced by the court as when it is enteredand recorded by the clerk, as required by statute. * * "there is no statutory provision for the signing of a judg-ment by the judge, either before or after its entry, andhis signature gives it no additional solemnity or validity* *- when, after the trial and final submission of thecase, the court pronounces a judgment in apt languagewhich finally determines the rights of the parties to theaction, and leaves nothing more to be done except theministerial act of the clerk in entering it, and especiallywhen what the court has pronounced has been entered inthe minutes, then the judgment has been rendered, andthe rights of the parties established. * * I an appeal froma final judgment must be taken within one year from therendition of the judgment. The time begins to run fromthe time when the judgment was rendered, not from thetime when it is entered."The principle on which the entry of judgments nunc pro tuneis sustained is that such action is necessary in furtherance of jus-tice, and to save a party from unjust prejudice through delaycaused by the act of the court or the course of judicial procedure.To support a nune pro tune entry the delay in entering the judg-ment must either be solely the fault of the court, or, at least, notattributable to the laches of the party in whose favor the practiceis resorted to. In other words, the practice is intended merely tomake sure that we shall not suffer for an event he could notavoid.17 As said in Freeman on Judgments .11"But with respect to proceedings which depend uponand date from the entry of the judgment, they cannot beaffected by the fact that the entry is nune pro tune."The statute in question fixes the date of entry of the interlocu-tory decree as the arbitrary, definite, fixed date or point of timefrom which the six months period begins to run. The entry of ajudgment is not the ministerial duty of the clerk, the entry orfiling is a duty of the parties to the divorce suit. Their failure"Curnen v. Curnen, note 12."Note 12." n re Finks, 224 Fed. 92 (1915).Is 5th ed., sec. 139, p. 264.NOTES AND COMMENTto enter the judgment is not an omission of the clerk to performIns ministerial duty, remediable by a nune pro tune order of thecourt. It is their own fault, and so not within the principle gov-ermng the entry of judgments nunc pro tune, and not to beremedied by the exercise of that power of the court.As the statute declares,"At any time after six months have exptred after theentry"of the interlocutory order and upon conclusion of an appeal, if anappeal be taken therefrom, a final judgment may be obtained, theitalicized words in the above quoted clause make it manifestthatthe full period of six months from, after and exclusive of the dateof entry of the interlocutory decree must elapse before a finaldecree of divorce may be enterd. In other words, six full calendarmonths must intervene between and exclusive of the date of entryof the interlocutory order and date of entry of the final decree.If the latter be entered on the last day of the six months period,it is void, because jurisdiction to enter a final decree does notexist until the full period specified has elapsed. In New York thedivorce statute provides."No final judgment annulling a marriage or divorcingthe parties and dissolving the marriage, shall be entered,* 1 0 until after the expiration of three months after thefiling of the decision of the court or report of the referee.After the expiration of said period of three months finaljudgment shall be entered."There it is held that application for final decree can be made only"when three months shall have expired from the date of filingthe interlocutory judgment."'F C. HAOKMAN.- Gibson V. Gibson, 81 N. Y. S. 343 (1903). And see Phillips v. PAU-Zips, 92 N. Y. S. 78 (1904).

Time of Entry of Interlocutory Decree of Divorce as Affecting Date of Final Decree

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Time of Entry of Interlocutory Decree of Divorce as Affecting Date of Final Decree

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