The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1897-07-15
DI10RcEE or WIDOW
NEW JERSEY COURTS TO SETTLE
THE STANDING of FORMER
MRS. M'CREADY.
THE TANGLE OVER PROPERTY
IS NOT STRENGTHENED OUT MUCH
BY JUDGE LEWIS SECOND
DECISION.
SECOND WIFE UNSUCCESSFUL
In Her Application for the Approval
and Decree OF Divorce In Favor
of the FIRST Wife.
THE TANGLE OVER PROPERTY
SECOND WIFE UNSUCCESSFUL


late ]. ]. McCready, or was she divorc-
ed from him before his death? That
is a question that nobody has as yet
determined. 1t is true that after the
district court decided that she was en-
titled to a divorce and filed an order for
judgment granting the divorce, that
Mrs. McCready welded another man,
while Mr.. McCready went to New Jer-
sey, married again, made $4,000 and
died a year ago without leaving a
will. Mrs. McCready No. was ap-
pointed administrators. When Mrs. Nc
Cready No. l was apprised OF the
death she came into the district court
of Ramsey county and moved to set
aside the findings and order for judg-
ment granting her a divorce, inasmuch
as the form of the decree had never
been submitted for approval to the
judge who tried the case, and no judg-
ment has ever been entered. Judge
Egan heard the case in May, 1892, and
filed his findings in December, 1895,
nunc pro tune as of May, 1892. Judge
Lewis denied the motion to set aside
the findings and order Of Judge Egan.
Then Mrs. McCready No. 2, who never
made application to be substituted as
party defendant in the case in place
of her deceased husband, appeared by
attorneys, nevertheless, and moved the
district court tC approve form or
judgment and decree of divorce ordered
in favor of Mrs. McCready No. l, and
further moved the court to direct the
clerk to enter the same. This motion
Judge Lewis has also denied in an or
der filed yesterday, giving his reasons
therefore in the following memoran-
dunn:
This is an application for the approval of a
form of Judgment and decree of divorce in
favor of the plaintiff and against the defend
ant, which Stella McCready, who claims to
be the widow of the defendant and the ad-
ministratriX of his estate seeks to have en-
tered in this action pursuant to the decision
and order for Judgment heretofore made and
filed herein.
The original action was tried on the 18th
day of May, 1892, during the lifetime of the
defendant who then was and ever since
has been in default. The case was sub
mitted at that time and taken under ad-
visement by the court. The defendant has
never appeared in the action, and on Dec. 3
1885, decision and order for judgment alb
solutely divorcing the parties was made by
Judge Egan and ordered flied as of May &c
1892 nunc pro tune. Subsequent to the max
ing and filing of said decision and order for
judgment. the Plaintiff herein moved to va
cate and set them aside, which motion was
denied by order of this court under date of
Feb. 10, 1897.
The judgment and decree of divorce in this
action has never bean entered, and the
plaintiff has served notice on the clerk of
courts forbidding the entry of the same and
the clerk of court will not enter judgment
in this case unless ordered to do so by the
court.
And now comes the Administrative of the
defendants estate, and by written motion
asks the court to approve the form of judg-
ment and moves orally that the court order
the clerk to proceed and enter the judgment
in accordance with the finding and decision
on file. The Plaintiff in this action opposes
the application on the part of this admins
tratriX on two grounds. First, that neither
the Administrative nor her attorneys have any
standing in this case and cannot properly be
heard on these notions and, second, that
the defendant is in default and the plaintiff
in this action in whose favor judgment has
been ordered objects to the entry Of judg-
ment and asks that the case be dismissed.
In determining the questions heretofore
raised on motion in this action it has not
been necessary, and the court has not passed
upon the standing of the Administrative and
her attorneys in this case. AS to the first
objection raised by plaintiff the record and
files in this action fail to show any appear
ance on the part of the defendant or any
appearance or substitution by or on the part
of the Administrative or her attorneys in the
place of the defendant. On the contrary
been in default and that the Administrative
has never been made a party defendant in
this action. And this court is of opinion
that there has been no appearance by or on
the part of the defendant or by or on the part
Of the Administrative or her attorneys in
this proceeding such as to give her or them
any standing in this case.
But If we were to admit that the admin
istratrix is a party to this proceeding in
stead Of the defendant who was In default
and has since died, even then it would be
doubtful If this application could be sus-
tanned for the plaintiff refused to permit
the clerk Of this court to enter judgment;
and under the rule established in Mimi.
572, this court has no power to compel a
party to enter Judgment in action or to
do any other affirmative act in the progress
of a cause which relates merely to the con-
duct Of the same. Where the duty is clear
and the other party is interested in it's per-
be done under penalty of being turned out
of court if it is the plaintiff. and of allowing
the plaintiff to proceed to judgment if it is
the defendant who disobeys.
Under this rule the court q
cannot compel entry of judgment in
favor of plaintiff against plaintiffs objec-
case where the defendant was in default
Under such a state of facts the court could
go no further than to order a dismissal of
the action unless plaintiff consented to pro
coed, but the plaintiff in the case at bar re-
fuses to proceed, and herself moves that the
action be dismissed Under these circum-
stances conceding that the Administrative
has been made party to this action, which,
in fact, Is not the case, and does not ap-
pear, we see no means by which this court
can act to grant the Administrative of the
defendant the relief for which she prays in
her motion.
The property of the deceased defend
ant, in which Mrs. McCready No. 1
seeks to establish a dover interest, is
located in New Jersey, and the courts
of that state will decide whether she
was the wife Of the defendant at the
time Of his death, or whether the find
ings and order for judgment and de-
cree of divorce filed in the Ramsey
county district court did in effect con-
stitute a divorce.