(dissenting) :
I am unable to agree with the disposition of this case and, accordingly, feel compelled to dissent.
Certain facts basic to the decision should be emphasized. The Superior Court entered an order directing petitioners, executors of the estate of V. L. Hash, deceased, to show cause why they should not be required to file some 200 divorce decrees and why orders should not be made in each case making the decrees effective nunc pro tunc as of the date of their signing by the trial judge in whose court they originally were heard. Petitioners invoked the original jurisdiction of this Court under Article 6, § 5, of the Constitution of Arizona, A. R.S., to prohibit the Superior Court sitting in probate from proceeding on the order to show cause, asserting both a lack of jurisdiction to order the decrees filed and filed nunc pro tunc.
It cannot be emphasized too strongly that the Honorable Laurens Henderson, as a judge sitting in a probate case, is proposing to direct the filing of final judgments and enter orders nunc pro tunc in 200 pending divorce cases. No legal basis whatsoever exists for this interfering in the affairs of 400 people by the probate court other than that signed decrees were found in the personal effects of V. L. Hash after his death.
*178Marriage is a status based upon civil contract. Southern Pacific Co. v. Industrial Comm’n., 54 Ariz. 1, 8, 91 P.2d 700, 703 (1939). It is specifically favored and protected by the law. It is a voluntary status and personal to the individual, subject only to legislative control of the circumstances under which it may be exercised both in joinder and in separation. The decisional right as to whether to enter into or terminate a marriage contract is so exclusively personal to the individual that no authority can be found which permits another to make the choice for him; certainly not because some judge thinks it is better that way.
Under Arizona rules of practice, the final legal step necessary to the termination of a marriage is the filing of the signed decree of divorce. Rule 58(a) of Civil Procedure, A.R.S. 16. There is no intermediate state to marriage. Either a person is or he is not married. Hence, until a decree is filed, there is no divorce. Until filing, a litigant has the right to change his or her mind, even to abandoning the divorce proceeding. This decisional right, so personal to the individual, is what is now being usurped by the Superior Court.
By the Constitution of this State, Article 6, § 14, the Superior Court has original jurisdiction over certain classes of cases. Among these are criminal cases amounting to felonies, cases in which the demand or value. of the property in controversy amounts to $500.00 or more, divorces and annulments, “[mjatters of probate,” and such other jurisdiction as may be provided by law.
So, a judge may ascend the bench and, in quick succession, sentence a defendant in a criminal case, hear and render judgment in a default divorce, grant or deny a motion for a new trial in a civil case, and appoint an executor in a probate matter. But in each case he exercises the jurisdiction peculiar to the class of the case which he is then hearing. He cannot, for example, in the criminal case enter an order giving damages to the complaining witness in the case, even though the facts would justify damages if a civil suit were brought.
“ ‘A court is a creature of the law, instituted for the determination of questions of law and fact under defined restrictions and limitations. The territorial limits of its power, the subjects and classes over which its power may be exercised, the terms upon which it may put its power into action, are as firmly and clearly established as the right to adjudicate when authorized to do so; and, though a court of general jurisdiction, it must proceed in the manner and upon the conditions imposed by the law, * * * ” State ex rel. Pollard v. Superior Court of Marion County, 233 Ind. 667, 671-672, 122 N.E.2d 612, 615 (1954) (quoting from Lowery v. State Life Ins. Co., 153 Ind. 100, 102, 54 N.E. 442, 442-443 (1899)).
The question which is primary and fundamental to the disposition of this case is whether a Superior Court judge sitting in probate has the jurisdiction to make and enter orders which purport to settle rights in other cases.
Arizona’s probate law is almost identical with that of California and was adopted from that state, Shattuck v. Shattuck, 67 Ariz. 122, 128, 192 P.2d 229, 233 (1948); Byrd v. Phoenix Savings Bank & Trust Co., 62 Ariz. 474, 480, 158 P.2d 657, 659-660 (1945); In re Estate of Nolan, 56 Ariz. 366, 373, 108 P.2d 391, 394 (1940); Gibson v. Gordon, 30 Ariz. 310, 314, 246 P. 1036, 1038 (1926); and it is commonly said both here and in California that the Superior Courts are courts of general jurisdiction. See, e.g., Tube City Mining & Milling Co. v. Otterson, 16 Ariz. 305, 311, 146 P. 203, 206 (1914).
While the words “general jurisdiction” have a certain rotundity of sound pleasing to the ear, they add nothing to powers or jurisdiction of the court, for these are circumscribed by the Constitution and statutes. The jurisdiction of the Superior Court is general because it has the power or jurisdiction to hear and determine all *179classes of cases and controversies except those otherwise carved out specifically by the Constitution and placed in an inferior court. That a court is a court of general jurisdiction does not mean that because the judicial robe has been donned a judge has unlimited power to impose punishment or reward righteousness as the occasion is deemed suitable.
What constitutes jurisdiction in “matters of probate” is well understood and strictly limited by statute. “Matters of probate” are the ascertainment and determination of the persons who succeed to the estate of a decedent, either as heir, devisee or legatee, and the amount or proportion of the estate to which each is entitled after the payment of debts. See, e.g., McClave v. Electric Supply, Inc., 93 Ariz. 135, 379 P.2d 123 (1963); In re Jacob’s Estate, 81 Ariz. 288, 305 P.2d 438 (1956); In re Estate of Jones, 10 Ariz.App. 480, 460 P.2d 16 (1969).
Prior to the adoption by Arizona of its Constitution and its probate statutes, the California Supreme Court, in 1902, in In re Estate of Davis, 136 Cal. 590, 597, 69 P. 412, 414-415, said:
“Under the fundamental law there is a probate jurisdiction vested in the superi- or court. It may be said that the probate court is gone, but that the probate jurisdiction remains. And that jurisdiction is now vested in the same court that exercises jurisdiction in cases of law and equity. Yet the probate jurisdiction of the superior court is different from its law and equity jurisdiction, in this: it is essentially a jurisdiction under the control of the state legislature. That lawmaking power may enlarge it or may restrict it. The character and extent of the jurisdiction is not only a matter under legislative control alone, but the procedure by which that jurisdiction may be invoked, and rights thereunder adjudicated, is expressly laid down by statute; and that procedure must be followed, or relief under that jurisdiction cannot be secured. While the superior court in this state exercises both equity and probate jurisdiction, still the procedure to be followed in seeking relief within those two jurisdictions is widely varied. And if the probate procedure laid down by the Code is followed, then only relief under probate jurisdiction can be granted. In such a case general equity relief cannot be secured.”
The Supreme Court of California has more recently said, in Estate of Bissinger, 60 Cal.2d 756, 764, 36 Cal.Rptr. 450, 455, 388 P.2d 682, 687 (1964):
“The rule is that 'while the superior court, sitting in probate, is a court of general jurisdiction, “the proceedings being statutory in their nature, the court has no other powers than those given by statute and such incidental powers as pertain to it and enable the court to exercise the jurisdiction conferred upon it, and can only determine those questions or matters arising in the estate which it is authorized to do. Thus, in the exercise of the powers conferred upon it, its jurisdiction is limited and special, or limited and statutory.” ’ ”
So, in following California, we said in Shattuck v. Shattuck, supra:
“This court has held that insofar as the Superior Court exercises jurisdiction in matters of estates of deceased persons it is a court of probate and its jurisdiction and functions in that respect are distinct from its jurisdiction and functions when sitting as a court of law and equity. State ex rel. Young v. Superior Court, 14 Ariz. 126, 125 P. 707; Garver v. Thoman, 15 Ariz. 38, 135 P. 724.” 67 Ariz. at 128, 192 P.2d at 233.
and in Vargas v. Greer, 60 Ariz. 110, 118, 131 P.2d 818, 821 (1942):
“ ‘ “Its power when sitting in probate matters is derived from the statute, and it cannot go beyond the provisions of the statute.” ’ ”
While the Superior Court as a court of general jurisdiction may have the power to entertain an action for a partnership accounting, it cannot do so while exercising probate jurisdiction: In re Estate of Bax*180ter, 22 Ariz. 91, 194 P. 333 (1921). There, this Court said:
“We are satisfied that the whole proceeding was without the jurisdiction of the probate court, and so hold.” 22 Ariz. at 99,194 P. at 335.
In Horne v. Blakely, 35 Ariz. 39, 45, 274 P. 173, 175 (1929), in deciding that the Superior Court sitting in probate could not litigate the ownership of property listed as part of the estate, we said:
“He [the' purported true owner] must proceed by a suit at law or in equity.”
In this case it was argued:
“that the proceeding, although formally in probate, was as a matter of substance in equity, and he contends that this court should disregard the form and look to the substance of the matter, * * 35 Ariz. at 46, 274 P, at 175.
We answered, conceding that the court was always disposed to disregard form in favor of substance:
“There is, however, a limit beyond which we cannot go.” 35 Ariz. at 47, 274 P. at 175.
In In re Jacob’s Estate, supra, 81 Ariz. 288, 293, 305 P.2d 438, 441 (1956), we held:
“At the outset it should be made clear that in deciding the question raised by this appeal it is wholly unnecessary and would be manifestly improper for us to determine (a) whether the power of attorney given by decedent to his son * * * was validly exercised, or (b) the validity of what is termed the family agreement, this for the reason that a superior court, sitting in probate, has no jurisdiction or authority to determine such issues.”
Finally, the Court’s action raises a substantial question of due process of law. As to this, the Supreme Court of the United States aptly stated the controlling principle in Standard Oil Co. v. Missouri, 224 U.S. 270, 281-282, 32 S.Ct. 406, 409, 56 L.Ed. 760, 767-768 (1912):
“The Federal question is whether, in that court, with such jurisdiction, the defendants were denied due process of law. Under the 14th Amendment they were entitled to notice and an opportunity to be heard. That necessarily required that the notice and the hearing should correspond, and that the relief granted should be appropriate to that which had been heard and determined on such notice. For even if a court has original general jurisdiction criminal and civil, at law and in equity, it cannot enter a judgment which is beyond the claim asserted, or which, in its essential character, is not responsive to the cause of action on which the proceeding was based.
‘Though the court may possess jurisdiction of a cause, of the subject-matter, and of the parties, it is still limited in its modes of procedure, and in the extent and character of its judgments. It must act judicially in all things, and cannot then transcend the power conferred by the law. If, for instance, the action be upon a money demand, the court, notwithstanding its complete jurisdiction over the subject and parties, has no power to pass judgment of imprisonment in the penitentiary upon the defendant. If the action be for a libel or personal tort, the court cannot order in the case a specific performance of a contract. If the action be for the possession of real property, the court is powerless to admit in the case the probate of a will. . The judgments mentioned, given in the cases supposed, would not be merely erroneous, they would be absolutely void, because the court, in rendering them, would transcend the limits of its authority in those cases.’ ”
It can only be concluded that the Superi- or Court sitting in probate is wholly without jurisdiction to order these decrees filed in divorce proceedings and enter orders in each case directing they be effective nunc pro tunc.
Nor can the probate court confer upon itself additional jurisdiction by its attempt to lift itself by its bootstraps, so to speak, in ordering in the probate proceedings no*181tice of its proposed action published and mailed to the 400 people whose rights are involved. If this is a constitutional method of procedure, then no person’s rights can be saved from willy-nilly judicious intermeddling.
The executors, in their petition to this Court, specifically question the jurisdiction of the Superior Court to enter the proposed judgments in this language:
“That the Superior Court had no jurisdiction to make entries in other actions still pending before this Court, to wit: the divorce proceedings referred to in petitioners application for instructions.”
This question of jurisdiction is answered by the majority at the end of their decision in this language:
“The order of the probate court, dated November 15, 1972, as modified by this opinion, is hereby adopted by this court and promulgated as an order of this court, thus disposing of the question raised by the executors, of whether the probate judge had jurisdiction to enter this particular order.”
If I understand the majority, what they are saying is that because the Supreme Court has adopted and promulgated an order similar to that of the Superior Court, there has somehow been conferred additional jurisdiction upon the Superior Court which by the Constitution it did not possess before.
On the one hand, Article 6, § 5 of the Constitution of Arizona specifies the jurisdiction of this Court. Needless to say, it does not provide that the Supreme Court can enlarge or restrict the Superior Court’s jurisdiction. The Constitution does provide that the Supreme Court shall have “Power to make rules relative to all procedural matters in any court.” But this is not a question of by what procedure the Superior Court acts. It is a question of whether it may act at all. On the other hand, the Superior Court’s jurisdiction to act in “probate matters” stems from Article 6, § 14 of Arizona’s Constitution and the statutes as made and provided by the Legislature. And this Court can neither enlarge nor diminish such jurisdiction.
Second, I am of the opinion that the Superior Court of Maricopa County cannot enter these judgments nunc pro tunc.
At the outset, it should be stated that Rule 58(a), Arizona Rules of Civil Procedure, does not permit the filing of these decrees.
Rule 58(a) provides:
“All judgments shall be in writing and signed by a judge or a court commissioner duly authorized to do so. The filing with the clerk of the judgment constitutes entry of such judgment, and the judgment is not effective before such entry, except that in such circumstances and on such notice as justice may require, the court may direct the entry of a judgment nunc pro tunc, and the reasons for such direction shall be entered of record. The entry of the judgment shall not be delayed for taxing cost.”
That portion of Rule 58(a) providing that the court may direct the entry of a judgment nunc pro tunc was adopted by amendment effective June 1, 1970. The State Bar Committee, at whose instigation this Court adopted the amended rule, set forth the reason for the amendment as follows :
“Black v. Industrial Commissions, 83 Ariz. 121, 317 P.2d 553 (1957) has been viewed by some as prohibiting the entry of an order or judgment nunc pro tunc in Arizona. The purpose of the amendment is to reject the basis for that view and to adopt the rationale of the dissenting opinion of Justice Struckmeyer in that case. The amendment does not specify the conditions, circumstances and effects involving the entry of a judgment or order nunc pro tunc. These are best determined by reference to the considerable body of law on the subject. See e.g. Mitchell v. Overman, 103 U.S. 62, 26 L.Ed. 369 (1880); * * *.”
Since the amendment was not intended to specify the conditions or circumstances *182controlling the entry of judgment or order nunc pro tunc, the question becomes, under what circumstances may a judgment be given retrospective effect ?
The principle underlying the entry of a nunc pro tunc judgment was set forth by Justice Harlan in his oft-quoted language in Mitchell v. Overman, 103 U.S. 62, 64-65, 26 L.Ed. 369, 370 (1881):
“The adjudged cases are very numerous in which have been considered the circumstances under which courts may properly enter a judgment or a decree as of a date anterior to that on which it was in fact rendered. . . .We content ourselves with saying that the rule established by the general concurrence of the American and English courts is, that where the delay in rendering a judgment or a decree arises from the act of the court, that is, where the delay has been caused either for its convenience, or by the multiplicity or press of business, either the intricacy 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.”
This Court has held that the object of an order nunc pro tunc is only the placing in proper form on the record the judgment that had been previously actually rendered in order that the record may speak the truth where its recording was omitted through inadvertence or mistake. American Surety Co. of New York v. Mosher, 48 Ariz. 552, 563, 64 P.2d 1025, 1030 (1936), appeal dismissed, 304 U.S. 550, 58 S.Ct. 1060, 82 L.Ed. 1522 (1938). And, of course, a clerk when he enters an order is obliged to show the date that he does it. He cannot date it back to the date the judge ordered the entry. Harbell Oil Co. v. Steele, 81 Ariz. 104, 105, 301 P.2d 757, 758 (1956). It must be entered nunc pro tunc at the direction of the judge.
In 1957, in Black v. Industrial Commission, supra, in a three to two decision, it was held that a minute entry reading “order for decree of divorce” was not a sufficient basis for the signing and filing of a divorce decree nunc pro tunc as of the date of the order for decree of divorce. To this decision, I dissented, being of the opinion that the facts showed a case of inadvertence. I also said, citing cases from many jurisdictions:
“I can find no dissent to the proposition that where a judgment has actually been rendered and that rendition is reflected in the record of the court, the judgment may be entered nunc pro tunc if the delay is not occasioned by the party applying.” 83 Ariz. at 131, 317 P.2d at 560. (Emphasis added.)
In the present case, the facts as given are that it was Hash’s custom to explain to every client that the client was not divorced until the decree was filed and that the decree of divorce would not be filed until his fee was paid. Were the 200 plaintiffs for divorce presently before the court seeking entry of decrees nunc pro tunc, they would have to explain that the delay was not occasioned by their acts. I do not, however, mean to imply that the opposing party in the divorce would not be entitled to the filing of the judgment with such an order upon a showing that they were unaware that the divorce decrees had not been filed. But, clearly, in their present posture the Superior Court may not order these judgments filed nunc pro tunc.
One further matter should be discussed. Petitioners, executors of the estate of V. L. Hash, stated to the Superior Court in their petition for instructions as to the disposition of the final decrees of divorce that “your petitioners believe the decrees should be deposited with the Clerk awaiting instructions from the individuals involved, and that proper instructions be given to the Clerk of the Court to insert notations in each file as to the location of the original decree with further proceedings pertaining to the filing of each of the said decrees to be determined on a case by case basis brought by the interested parties in *183said domestic relations proceedings.” It seems to me that this is the proper procedure, preserving to everyone concerned their rights without stretching the authority of the Superior Court.