
    MODIFICATION OF DECREE LONG AFTER. TERM.
    Common Pleas Court of Montgomery County.
    Gertrude S. Sharp v. Frederick W. Sharp.
    Decided, April 7, 1910.
    
      Relief after Judgment*—Decree of Divorce Recited that Husband did not Appear—Whereas Action of His Counsel Amounted to Entry of Appearance Under the Authorities—Wife Remarries and Intervening Property Interests Become Involved—Modification of De- . oree Allowed.
    
    1. Where the action -of the defendant in a divorce proceeding was through his counsel such as to amount under -the authorities to an entry- of appearance, the words in the decree “and [the defendant] ' having failed to appear” may he stricken out after term, and the words “and having entered his appearance herein” substituted therefor.
    2. The making of a nunc pro tunc entry embodying such-a correction of the original decree is not barred by the statute of limitations until three years after the parties to the action had notice of the true legal significance of the language with reference to the appearance of the defendant as originally embodied in the decree.
    3. Where the tacts in the case go to show that a divurced woman believed in good faith she had a right to marry again, and the facts upon which she obtained a divorce would have rendered her subsequent marriage legal in any state except New York, and she lived with her second husband for a period of seventeen years until his death, she is entitled to all the benefits and privileges of being considéred the widow of said second husband.
    
      Ferdinand Jelke, Jr., for Gertrude S. Higgins.
    
      Andrew S. Iddings, for Frederick W. Sharp.
    
      Sparks & Fuller and Frank W. Howell, for next of kin of Thomas C. Higgins, deceased.
   Martin, J.

In this ease the court approved an entry in February, 1910, to modify and reform an entry and judgment approved some seventeen years- ago by the Hon. Dennis Dwyer, judge of the common pleas court at that time. The former entry was modified by striking out the words- “and having failed to appear,” and substituting therefor the words “and having entered his appearance herein.”

The court at the time understood that the reason why the application had been 'made to have said entry changed was that the marriage of said Gertrude S. Sharp to one Thomas C. Higgins, and of Frederick W. Sharp to some person to the court unknown, having taken place in the state of New York was invalid, and that the children, if any born, were illegitimate.' Counsel representing either of the parties in the case may have made other representations to the court, but this representation was so emphasized by counsel that the court did not make the careful examination of the law it would otherwise have made if it had been impressed by the fact that there were intervening interests involved. Subsequently counsel for the-next of kin of Thomas C. Higgins, deceased, appeared before the court and made the claim that the motive for modifying' the first entry was not to legitimatize bastard children, but to secure an advantage in reference to the distribution of a large estate at one time belonging to Thomas C. Higgins. Said counsel further made the claim that said entry was modified and reformed contrary to law, and that under the law, the court had no right to modify or alter said entry. Thereupon the court informed said counsel that, if the court had no right to modify said entry, the court would vacate and set the same aside, and for that reason permitted the counsel for the next of kin of Thomas C. Higgins, deceased, after •having notified counsel for Gertrude S. Higgins and Frederick "W. Sharp, to present their reasons why the former action of the court was contrary to law.

Therefore, brushing all motives aside for any and all parties and any and all. counsel in the case, the question arises, did the coui’t have a right to modify said entry; did the counsel for Gertrude S. Higgins and Frederick W. Sharp have a right to ask the court to modify said entry; and should the court have modified said entry?

In determining this question, the first proposition to consider is whether or not Frederick W. Sharp did enter an appearance, when the depositions were taken in New York City, through his attorney, Andrews. All the authorities in the state of Ohio are unanimous upon the proposition that he did enter his appearance; and counsel for the next of kin of Thomas C. Higgins, deceased, have cited no authorities whatever to the contrary. So that the real facts in the ease, as they were formerly'heard before Judge Dennis Dwyer, were that Frederick W. Sharp did enter his appearance, and that by some irregularity or mistake Mr. Clay, the attorney for Gertrude S. Sharp, when the divorce was granted, failed to represent the actual facts in the judgment entry, when he represented in that entry that Frederick W. Sharp had failed to appear.

The second proposition is, then, whether the fact that seventeen years had intervened between the time when the first entry was put on record and the nunc pro tunc entry was put on record was such a length of time as would prevent the court from acting on account of the statute of limitations. And as bearing on th£.t proposition, counsel for the next of kin of Thomas C. Higgins, deceased, claim that Section 5363 of the Revised Statutes of the state of Ohio, in which the clause ‘ ‘ after the defendant has notice of the judgment” does not modify the clauses mentioned in subdivisions three and six of the same section, but only modifies subdivision nine, and that consequently neither Gertrude S. Higgins nor Frederick W. Sharp had a right to make an application and file a motion to have an entry modified after three years had lapsed from the time that the entry was placed on record. The punctuation of this part of Section 5363 in itself would show that “after defendant has notice of the judgment” does not alone modify subdivision nine, because there is a comma between the words “two years” and the word “after.”

Therefore, the court will hold that in this case either Mrs. Higgins or Frederick W. Sharp would have three years within which to file a motion to modify an entry after they had notice of such entry or judgment.

Counsel for Higgins’ heirs claim that both parties had notice of this entry and judgment substantially at the time when this entry was placed On record, because both have been married for a number of years. The court has no doubt that they had notice of the fact that there was an entry on record, but the facts also convince the court that neithér party .understood the real character of that entry in its legal significance, because there is no question that they both believed they were legitimately married in the state of New York. The court further believes, and is convinced, that neither party knew the true legal significance of this entry until it was brought to their notice by proceedings in the courts of the state of New York, in the matter of the estate 'of Thomas C. Iiiggins, deceased. And therefore the conclusion of the court is that they had no notice as contemplated in Section 5363 until some five or sis months ago, and therefore had the right in February under this Section 5363 to make a motion to modify the entry in question.

If simply knowledge of the fact that there was a judgment and record is the notice contemplated in Section 5363, then the contention of counsel for Mrs. Iiiggins is that since the only parties in this action, to-wit, Mrs. Iiiggins and Frederick W. Sharp, were the only parties who could interpose the objection that the statute of limitations had run against their right and privilege to modify this entry, and since neither one of these parties did interpose this as an objection, the statute of limitation would not apply in this case. So that the court finds as á matter of fact that Frederick W. Sharp did enter his appearance in this ease, and that as a matter of right all parties were entitled to a modified nunc pro time entry as was placed upon the'records of this court iñ February, 1910.

When it comes to the equities of the case regardless of the law, under all the facts, the court is also of the opinion that the woman believed in good faith that she had a right to be married, and proved by facts in the case that she was entitled to a divorce which would render a marriage in any other state legal, and that having lived with the husband of her second- marriage for a period of seventeen years, she is entitled to all the benefits and privileges of being considered the widow of that husband after his decease.  