
    [No. 13396.
    Department One.
    March 10, 1890.]
    In the Matter of the Estate of EMMA COOK, Deceased.
    Divorce — Rendition of Judgment — Neglect of Plaintiff to have Judgment Entered.—A judgment of divorce is effective to dissolve the marriage tie when the order for judgment is rendered and entered upon the minutes, and the failure or neglect of the plaintiff to have the judgment entered will not affect its validity, it being the duty of the clerk to make the entry at any time after the rendition, and the entry being but the evidence of the judgment already in operation and effect.
    Id.—Decree Nunc pro Tunc — Conolusiveness—• Cause of Delay—. Application by Stranger to Record — Notice. —The entry of a decree of divorce nunc pro tunc, after the death of the plaintiff, is conclusive as to all matters of evidence necessary to its validity, including the cause of the delay. If proof of the fact that plaintiff was not in fault for the delay is required, it must be presumed that such proof was given. Nor is the entry of such decree void because entered on application of the second husband of the plaintiff, who is a stranger to the record, and without notice to the first husband, who was defendant in the action of divorce.
    Appeal—Law of the Case — Immaterial Difference of Facts.—The decision of this court, rendered on a former appeal in the same cause, must be enforced as the law of the case on a- second appeal, notwithstanding a difference in the facts, if such difference be an immaterial one.
    Appeal from a decree of distribution of the Superior Court of the city and county of San Francisco, and from an order denying a new trial.
    The facts are stated in the opinion of the court.
    
      Eugene N. Deuprey, and Alfred Clarke, for Appellant.
    
      James If. Seawell, and H. C. McPike, for Respondent. Tilden & Tilden, for Administrator.
   Paterson, J.

—This is an appeal from a decree of distribution. The case has been in this court before. (77 Cal. 220.) The question to be determined is, whether Theodore T. Cook or William W. Richards is the surviving husband of Emma Cook, deceased. Each claims that he is entitled to one half of her estate hi’ virtue of such relation. Cook was married to the deceased December 26, 1873. Richards, believing that she had been, divorced from Cook on April 23, 1880, was married to her in due form of law on May 30, 1880, and thereafter lived and cohabited with her as her husband until her death, November 30, 1883.

At the former hearing of the contest, the court below decided in favor of Cook, holding that as the decree of divorce had not been actually entered, he had never been divorced from Emma. On appeal, we reversed the decree, and remanded the cause for a new trial. On the last trial, the court below admitted the judgment roll in Cook v. Cook in evidence, held that the parties were divorced in that action, adjudged Richards to be the surviving husband, and entered a decree distributing one half of the estate to his assignee, Miller. From this decree Cook has appealed.

In the former opinion it was said: Of course, we have no commendation' for the neglect of the clerk to enter the judgment in Cook v. Cook immediately after it was pronounced, or for the failure of the attorney for the plaintiff in that action to see that the judgment was then entered; but many of the most perplexing questions presented here arise out of the want of care or the want of capacity of attorneys and other officers of the courts. It is the duty of the court, however, to protect the rights of litigants, even against the incapacity of their agents, except where such incapacity has placed those rights beyond the reach of legal justice.”

Acting upon the theory that the neglect of the clerk, without fault of Emma Cook, was the basis upon which the court rested its decision, counsel for Cook, against the objection of respondent, proved at the last trial, and the court found, “ that after the rendition of said decree in Cook v. Cook, the attorney for said Emma Cook in said action notified her that she was not and would not be divorced from said Theodore T. Cook until said divorce was entered; and that in order to have said decree entered, it was necessary for her to pay the fees of the clerk of said court for entering said decree, amounting to the sum of four dollars, but that said Emma Cook wholly neglected to pay said fee; that the failure to enter said decree of divorce was wholly the fault of said Emma Cook, and not the fault of the court, or any of its officers, or her attorneys.”

It is said that without the judgment which was entered nunc pro tunc there would have been no evidence of a decree of divorce, and that the validity of the order for a decree nunc pro tunc rested upon the fact that it was the fault of Emma Cook’s attorneys, or of the clerk, and not any fault of her own, which led to the delay in the entry of the decree. Therefore, it being made to appear that the failure to enter the decree until after the death of Emma was due to her own neglect in her lifetime, it is claimed the decree nunc pro tunc is invalid, and should have been excluded.

There are two answers to this contention of appellant:--

1. We do not think that the court in the former appeal placed its decision upon the ground that the failure to enter the decree was due to the fault of the attorneys of Emma or to the clerk, or that it considered the question whose fault caused the delay at all material. An examination of the opinion rendered by Mr. Justice McFarland will show that the decision went upon the grounds that the record in Cook v. Cook established the fact that a judgment of divorce had been rendered by the court on April 23, 1880, and entered in the minutes; that thus entered in the minutes, it was as.valid and binding as if it had been written and signed by the court, and being so, took effect at the time of its rendition; that the judgment having been rendered in the lifetime of Emma, there was no error in entering it after her death, it being the duty of the clerk to enter the judgment at any time after its rendition, upon payment of fees, and the entry being but the evidence of the judgment already in operation and effect.

These being the grounds'of the decision, we are bound to hold that the distinction sought to be made by appellant between the facts of the case as they appeared on the former trial and in this record is an immaterial one, and therefore, under the rule as to the law of the case, the judgment should be affirmed.

2. If it be true that the court could not enter a decree nunc pro tunc, unless the delay was caused by the fault of an officer of the court, the question remains, Where and how is the cause of the delay to be determined? It must be done in the court in which the entry is to be made. In this matter it appears that the court which rendered the decree heard evidence, and ordered a decree entered nunc pro tunc. If proof of the fact that Emma Goolc was not in fault was required, we must presume that such proof was offered. In other words, so long as the decree stands, it is conclusive as to all matters of evidence necessary to its validity. But it is claimed that the decree as entered is void on its face, because made on application of Richards, a stranger to the record, and without notice. These contentions were urged upon the court on the former hearing. If they, or either of them, had been deemed sound, the judgment would not have been reversed; if the decree was void, it would have been declared to be inadmissible evidence.

Judgment and order affirmed.

Fox, J., and Beatty, C. J., concurred.  