Nolte v. Nolte

CONREY, P. J.

Appeal by the plaintiff from an order vacating a final decree of divorce. On the twenty-eighth day of June, 1909, the case was tried and submitted to the court for decision. On June 28, 1910, an interlocutory decree was signed, together with an order “that the foregoing decree be entered

nunc pro tunc

as of June 28, 1909.” This decree was entered July 5, 1910, as of June 28, 1909. On July 1, 1910, a final decree of divorce, purporting to be based upon such interlocutory decree entered

nunc pro tunc

as aforesaid, was signed by the judge. This decree was entered July 6, 1910. On the twelfth day of November, 1912, the court, upon its own motion, entered an order setting aside and vacating said final decree “because it was entered within a week after the actual entry of interlocutory decree of divorce.” It is from this last mentioned order that the appeal is taken.

[128]

We find in the transcript an affidavit made by the plaintiff’s attorney and sworn to on July 1, 1910, which the appellant claims contains a statement of the facts which led the court to make its order for

nunc pro tunc

entry of the interlocutory decree. This affidavit comes into the transcript under a certificate describing it as part of the judgment-roll. As it is not part of the judgment-roll and does not appear to have been one of the papers used in connection with the order from which the appeal is taken, we find no legal ground for taking cognizance of the contents of such affidavit. (Code Civ. Proc., sec. 951.) But this defect is immaterial, since facts sufficient to satisfy the court may have existed and may have been shown to the court; and since no appeal appears to have been taken from the judgment, it will be assumed that the court had before it facts sufficient to authorize such order to the full extent that the order could legally be made under any circumstances. Therefore, if, as counsel claims, an interlocutory decree in like form as the one that was entered in 1910 had been signed on June 28, 1909, by the judge who tried the case, and had been delivered to the clerk for filing, and if without filing or entry of such decree the same was lost by the clerk, these would be circumstances strongly appealing to the court in the exercise of its judgment favorably to the request of the plaintiff that the decree be entered as of the date of trial.