The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-02-11

was tried and submitted, nunc pro tune.
At common law the death Of one Of the
parties abated the action, and 1T is contend
ed that this action is strictly personal in
it's character, and, by all the rules and max
inns of the law, dies with the person, I'M
less it survives by virtue Of section 5,912,
Statutes of Minnesota. 1894.
This contention is unqueStionably true, un-
less the peculiar circumstances OF this case
are sufficient in themselves to take it out
of the rule thus laid down. After careful
inquiry into the facts in this case, We are
of the opinion that the delay in filing the
decision was solely the delay and act of the
court, and, such being the case, this court
ought not to permit innocent parties to suffer
because of its delay. The inherent power of
the court to render and order a judgment
nunc pro tune under such circumstances can
not be denied. Freeman on Judgments QS92
ED, section 81. And the period in which
this power could be successfully invoked was
never invited. Freeman on Judgments Q892
ED, section Sc. Justice Harlan, in the
states the rule as follows: 1.-THE rule estab-
lished by the general concurrence of the
American and English courts, is that that
where the delay in rendering a Judgment OF
a decree arises from the act Of the court,
that is, where the delay has been caused
either for Its convenience or by the multi
plicity or press of business, either the in
tr;cacy of the questions involved or of any
other cause not attributable to the laches
of the parties, the judgment or the decree
may be entered retroSpectively, as of a time
when it should or might have been entered
up. In such cases, upon the maxim the act
Of the court shall prejudice no one which
has been well said to be founded in right
and good sense, and to afford a safe and GER
tain guide fer the administration of justice,
it is the duty Of the court to see that the
parties shall not suffer by the delay. a
nunc rro tune order should be granted or
refused. as Justice may require, IN view OF
the circumstances of the particular case.
After quoting other authorities upon the
same question, the memorandum continues,
The minutes of the clerk Of the court, made
at the trial. contain an entry that the case
was tried and submitted on the 26th Gay
of May, 1892. The signing of the decision
and nunc pro tune order Dec. 2, 1896, was
the act of the court; it matters not by whom
it was presented to him, the signing made
it the decision of the court, and we are
satisfied the trial Judge acted with full knowl-
edge Of The death Of defendant, and with all
the facts in the case before him. knowing
that the surrounding circumstances and the
administration of justice demanded such &C
ton, the delay having been occastoned by
the act of the court, and his action is sus-
tanned under the rule in Freeman on Judg-
ments QS92, Ed, sections Sc and 81.
Admit the delay was not the act Of the
court, then 1t must have been the act OF
plaintiff, for defendant never appeared IN
the action. Such being The case, is plaintiff
in a position to complain if the court un-
dertakes to grant her the relief for which
she has prayed?
There is yet a stronger reason why the
motions of plaintiff should be denied. This
matter comes before the court at this time
for the sole purpose of determining property
rights, and is unaffected by any considera-
tons which give to the marriage relation its
precise status. To use the reasoning in
Marvin VS.. Foster, 81 MIMI, 154, the mar
rage relation between Ida NJ. Macready, the
plaintiff, and ]. J. Macready, the defendant,
with all it's duties and obligations, has been
terminated by his death, and plaintiff herself
having chosen to marry again and to sur
render all claim ON defendant for support OF
property, now asserts this former relation
with defendant and assails this decision and
order for decree of divorce solely for the
purpose of obtaining his property, acquired
by him while she has been living with and
as the wife of another. In view of these
facts, 1t would APPEAR she Is estopped by
her own conduct. There is yet another party
whose interest in this case demands grave
consideration. The innocent second wife, and
the issue, if any, of her marriage with de-
PENDANT. should not be made the victims OF
plaintiffs wrong doing. Justice and good
morals require that they at least be left
honorable.
court is of the opinion that his honor, Judge
Egan, was justified in filing the decision, and
the nunc pro tune order relating thereto, and
II IN SO doing he has ventured beyond the
properties which good law and sound prac-
uce have established, plaintiff herself has
closed the door to justice, and is not In q
position to complain of the act of the court. u
Judge Lewis thereupon vacates the
order granting a stay of proceedings
and denies the motion of Mrs. Mac
ready No. 1 to vacate the decision and
order Of Judge Egan dated Dec. 2, 1896
and filed as Of the 26th day Of May,
1892, "nunc pro tune"
The decree of divorce will therefore
be duly entered, the plaintiffs only re-
source being to appeal to the supreme
court from the judgement.