97 Tenn. 279 | Tenn. | 1896
In this cause a petition was filed by Meyer and others, in which it was alleged that in August, 1892, James Rush instituted a suit in the Circuit Court of Hamilton County against his wife, Chaney Rush, seeking a decree of divorce from her; that a summons was issued by the Clerk of the Court, which was duly served by the Sheriff of that county on the defendant, Chaney; that after-wards, at the September term, 1892, of that Court, that cause came on to be heard before the Judge of the Court, who, after hearing the proof, adjudged that James Rush was entitled to the divorce as prayed for by him, and that thereupon a note of this judgment was made on the Judge’s docket by him, but the judgment had never been entered or extended by the Clerk on the minute or record-book of the Court.
The petition further alleges that, subsequent to his judgment, James Rush, representing himself to be unmarried, conveyed certain real estate for a valuable consideration to petitioners, and thereafter died, and that since his death Chaney Rush, claiming to be his widow, was in the Chancery Court of that county seeking to set up a homestead right in said property, upon the ground that she had not joined in the conveyance thereof. After alleging these facts, petitioners’ ask that Chaney Rush be made a party
A summons was regularly issued upon order of the Circuit Judge, upon this petition, requiring the said Chaney to make answer thereto by a fixed day, and this summons was duly served on her by the Sheriff. Failing to answer or otherwise plead, it was taken for confessed against her, and thereupon the same was submitted to the Court with other proof, when it was ordered that the judgment of divorce be entered nunc pro tuno, as petitioners had prayed. The case is now before us on appeal, and it is insisted that this action of the Court below was unauthorized and void. It may be said, preliminarily, there is ' no doubt that where, as in this case, the only question is as to the right of' the lower Court to make such an order or entry as the one in question, that the decision is of such a character as to entitle the party affected adversely thereby to prosecute an appeal from it. 1 Elliott’s Gen. Prac., Sec. 1920, and notes. It is equally clear that a party whose rights are injuriously affected by a clerical omission to extend upon the record a judgment of the Court regularly pronounced, may present the matter to the Court, and, upon a proper showing, have the judgment entered nunc pro tunc.
All Courts have the right, and it is their duty,
This rule applies as well to a divorce proceeding as to any. other, and its application is not affected by the fact that one of the parties to the cause is dead at the time the nunc pro tunc entry is sought. 1 Freeman on Judg., Sec. 61; 2 Bishop on Mar., Div., & Sep., Sec. 687; In re Cook's Estate, 83 Cal., 415. Applying these principles to this record, it will be readily seen the Circuit Judge was not guilty of any error in his action in this regard. The bill of exceptions shows that there was found in the files of the Court, in a wrapper used by the Clerk for keeping the papers in each cause, a petition for divorce by James Rush against Chaney Rush, alleging legal grounds for the same, sworn to as required by the statute. On the back of this
On the same day — that is, on August 18, 1892— a summons was issued by the Clerk to the Sheriff, requiring him to summon Chaney Rush £ £ to appear on the first Monday in September next, then and there to answer James Rush in a suit for divorce instituted in said Court, etc., and, on the back of this was found indorsed a return of the service of the same on the defendant, dated August 20, 1892,’ signed by the Sheriff. The cause was entered on the trial docket used by the Court, and, in a column left for the Judge’s memoranda, and at a place opposite the entry of a cause styled "James Rush v. Chaney Rush," was found' noted the following: <£Divorce for plaintiff.”
It is true, as is objected, that the record itself did not show when this memorandum was made, or that it was made by the Judge of the Court. But this defect was cured by the distinct averments of the petition filed against Chaney Rush, asking for the entry of the nunc pro tunc judgment, that - the de-