In re the Estate of Cook

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 [416]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 [417]