delivered the opinion of the Court:
This cause was, at the September term, 1882, properly submitted to this court by the parties, for its final judgment, upon the merits. Both parties then being in life, this court thereby acquired complete jurisdiction over the'parties and of the subject matter of the controversy, which was not divested by the subsequent death of the appellee. No question is made but that a judgment of this court, if made at that term, would have been valid and conclusive upon the parties properly before it. Formerly, the judgments of this court were announced and entered of record only in term time, and usually at the term at which the causes were submitted, and opinions were afterwards prepared and filed. This practice was changed many years ago, and to avoid delays as far as practicable, a statute was passed authorizing the rendering and entering of judgments and orders in vacation in all cases which had been taken by the court under advisement.
The first question presented relates to the validity of the judgment of this court, as it now stands. Is it void for want of jurisdiction, or is it binding upon those succeeding to the estate of the appellee ? Where the sole defendant is dead when the suit or writ of error is brought, it may be true that a judgment against the deceased defendant is a nullity, for the reason that the court never acquired jurisdiction of the cause. In such a case the court never acquires any authority to act or take any step. But that is not the case here. Here, the court, before taking any steps, was clothed, by the act of the parties and the law, with full jurisdiction and rightful authority to render the judgment it did. Did the death of the appellee, — not brought to the notice of the court by plea, suggestion, or otherwise, — deprive it of such jurisdiction lawfully acquired? We think not.
In Reid v. Holmes,
In Spaulding, Admr. s. Wathen, 7 Bush, (Ky.) 662, an appeal was prosecuted to the Court of Appeals after the death of the appellant, without knowledge of his death,, and the judgment below reversed, and the court held that its judgment of reversal was .not void, but binding, and say: “The death of John after judgment in the circuit court, and before the appeal was prosecuted, did not take away from this court the right to entertain it. Regularly, a personal representative should have been appointed, and the appeal prosecuted in his name; but we are not prepared to say the want of a personal representative renders void the appeal, and all proceedings had under the same. * * * Where a plaintiff dies pending his suit, his death may be pleaded in abatement, but the defendant may waive such plea, and permit the cause to be tried upon its merits, without revivor. The Supreme Court of Illinois held in the ease of Camden et al. v. Robertson,
Freeman, in section 140 of his work on Judgments, says: “If jurisdiction be obtained over the defendant in his lifetime, a judgment rendered against him subsequently to his death is not void, ” — citing in support of the text, Collins v. Mitchell,
In Stoetzell et al. v. Fullerton,
But it is urged, that conceding the foregoing to be good law, it has no application to a suit for a divorce. It is claimed that the death of either party puts an end to all further legal proceedings. This is true where the death takes •place before any final decree of divorce. (Ewald v. Corbett,
This court has decided that a divorced wife, after the death of her husband, may prosecute a writ of error to reverse the decree of divorce, - and thereby be restored to all her rights as widow in the estate of -her deceased husband. (Wren v. Moss et al.
If, then, the appellant could have prosecuted her appeal or writ of error to reverse the decree of divorce even after her husband’s death, and thus remove the bar of that decree to the assertion of her property rights as widow of the deceased, no reason is seen why she may not do the same thing where her husband dies after the appeal is taken or writ, of error brought, and after the cause is submitted. The most that can be said of the entry of final judgment after the death of the appellee is, that it was irregular and informal. No valid objection can be urged to its substantial justice. If the procedure was informal, it seems no objection was taken to the same by either party, and the attention of this court was not called to the fact of appellee’s death. Until objection was made to the judgment, appellant might have remained passive; but we see no good reason why the informality may not. be corrected in the mode suggested by the appellant, — by directing the amendment of the record so as to show the entry of the judgment of a date prior to appellee’s death. This we clearly have the power to do in furtherance of justice.
In Wood v. Keyes et al.
Where an action on a statute was tried before its repeal took effect, and a verdict rendered for the plaintiff, and questions of law were reserved, which, after the repeal took effect, were decided in favor of the plaintiff, the court ordered judgment to be entered on the verdict as of a day previous to the going into operation of the repealing act. Springfield v. Worcester,
Where a plaintiff was non-suited at the trial, and who applied for a new trial, died while the cause was sub judice, and a new trial was eventually denied, the defendant was permitted to enter judgment as of the term succeeding the non-suit, the plaintiff then being in full life. Spalding v. Congdon,
But it is urged that the judgment of this court in reversing the judgment of the Appellate Court can have no effect to restore appellant to her rights as widow of her deceased husband. It is claimed there were entered two distinct and separate decrees in the circuit court, — the one for the divorce, and the last refusing to set aside the decree of divorce and allow the appellant to defend, — and that she appealed only from the latter,-and not from the decree of divorce, and therefore the appellate court can reverse only the order denying her an opportunity to defend, leaving the decree of divorce in full force. This court decided that the circuit court erred in refusing to set aside the decree of divorce, and upon that ground reversed the judgment of the Appellate Court, and remanded the cause. This is equivalent to remanding with directions to reverse the order of the circuit court overruling the motion to vacate the decree, and to remand the case to the circuit court, with directions to the circuit court to allow the motion and vacate the decree.
The motion to amend the record in this court will be allowed, and the record of the judgment amended so as to make it appear as of the September term, 1882. When the case comes before the Appellate Court' under this record as amended, formal regularity will require the death of appellee to be suggested, and that his legal representatives be made parties thereto.
Motion allowed.