Allen v. Gibbons

Decision Date16 January 1968
Docket NumberNo. 32803,32803
Citation425 S.W.2d 243
PartiesLoretta ALLEN and Thomas M. Allen, Plaintiffs-Respondents, v. Jane C. GIBBONS, Defendant. and Aetna Casualty and Surety Company, Garnishee, Appellant.
CourtMissouri Court of Appeals

H. L. C. Weier, Dearing, Richeson, Weier, Roberts & Wegmann, Hillsboro, for appellant.

Thurman, Nixon, Smith & Howald, Robert Lee Smith, Hillsboro, for respondents.

CLEMENS, Commissioner.

Plaintiffs had a $5,000 uncontested judgment against defendant Jane C. Gibbons, the daughter of the garnishee's insured. Plaintiffs then garnished the insurer, appellant Aetna Casualty and Surety Company, and got a verdict and judgment against Aetna for the $5,000 plus interest and costs. Aetna has appealed, attacking (1) the validity of plaintiffs' original $5,000 judgment on the ground it was indefinite and, thus, insufficient to support plaintiffs' garnishment, and (2) the failure of plaintiffs' evidence in the garnishment trial to show that the original defendant was an insured under the omnibus clause in Aetna's liability policy carried by her father.

We will identify the parties and then recite the proceedings in the primary case leading up to plaintiffs' $5,000 uncontested judgment, on which they base their garnishment.

Plaintiff Loretta Allen and her son, Thomas M. Allen, owned and lived in a house trailer in rural Washington County. Defendant Jane C. Gibbons drove a car off the highway into the trailer, injuring Mrs. Allen. She filed suit against Jane Gibbons in the circuit court of Washington County for $20,000 personal injuries. An answer was filed by Jane Gibbons' attorney. Thereafter an amended petition was filed by Loretta Allen and Thomas M. Allen, realleging Mrs. Allen's personal injuries and alleging $1,400 damage to their house trailer; the two plaintiffs, in a single count, prayed for $15,000 damages. In due time the case came on for trial (before the predecessor of the present trial judge). After both Loretta Allen and Thomas Allen had testified, the court rendered a $5,000 judgment.

Aetna's first attack is based on the court records regarding that judgment. There were three entries: on the judge's docket sheet, in the clerk's minute book, and in the court record. At trial time the judge's docket sheet was still captioned 'Loretta Allen vs. Jane C. Gibbons,' although it bore a notation showing the filing of the amended petition in which Thomas M. Allen was a co-plaintiff. The judge's docket sheet then recites: 'Larry Casey withdraws as attorney for defendant. Plaintiff appears in person and with her counsel. Plaintiff presents her evidence and submits her case. Judgment for plaintiff in the amount of $5,000.00 and costs.' The clerk's minute book entry reads: 'Loretta Allen versus Jane C. Gibbons, Case No. 4361; Larry J. Casey withdraws his appearance. Judgment for Plaintiff in the amount of $5000.00.' The circuit court record contains the following entry: 'Now at this time Larry J. Casey withdraws his appearance as attorney for Defendant. Judgment entered for plaintiff in the amount of $5000.00.'

Aetna contends that only a valid judgment can support a garnishment, and that the judgment here is void since it failed to name both plaintiffs, since it did not say whom it was rendered against, since it did not show whether it was by default or trial by the court or a jury, and since it did not separate the amounts awarded for personal injuries and for property damage.

We must first decide exactly what Aetna is attacking. Is the court's judgment to be determined only by the words written on the court's records (Aetna's contention), or is it to be determined by what the court obviously meant and should have written in view of the nature of the action the court had tried (plaintiffs' contention)? We note that Judge Lamm, in Spindle v. Hyde, 247 Mo. 32, 152 S.W. 19(5), said: '* * * a judgment is but the conclusion in a syllogism having for its major and minor premises the issues raised by the pleadings and the proofs thereon. A judgment is the sentence of the law upon the record.' Thus, in determining what the court's judgment was we look beyond the mere words written by the judge and the court's clerk. We distinguish between the force of the judicial act of the court in rendering judgment and the ministerial act of entering it upon the record. The rendition controls. Lieffring v. Birt, 356 Mo. 1092, 204 S.W.2d 935(2--5); Rehm v. Fishman, Mo.App., 395 S.W.2d 251(6--9).

In case of doubt about a judgment we are not restricted to the four corners of the record entry, but may look beyond that. In State ex rel. Whatley v. Mueller, Mo.App., 288 S.W.2d 405(5--7), we dealt with enforcement of a judgment entry that was vague as to amount, and said: "An obscure judgment entry may, however, be construed with reference to the pleadings and record, and, where on the whole record its sense can be clearly ascertained, the judgment will be upheld.' * * * Even though the judgment may not be complete within itself, and contain within its four corners the mandate of the court, it is nevertheless sufficient if it can be made perfect by reference to the pleadings or papers on file in the case.' This principle was followed in McGowan v. St. Louis Union Trust Co., Mo., 369 S.W.2d 144, to determine the identity of the parties.

The case of State v. Haney, Mo., 277 S.W.2d 632(4), 55 A.L.R.2d 717, was an action for enforcement of a bond forfeiture. The judge's minute entry read: 'Judgment by default as to Defendant, Principal and Sureties. Fieri Facias Writ ordered as to all.' There was no other record of the judgment. In...

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14 cases
  • Byrd v. Brown
    • United States
    • Missouri Court of Appeals
    • February 27, 1981
    ...the whole record may be considered in determining the effect of that entry. State v. Haney, 277 S.W.2d 632 (Mo.1955); Allen v. Gibbons, 425 S.W.2d 243 (Mo.App.1968). When that entry is considered with the subsequent language of the court in referring to the "judgment of November 17, 1978", ......
  • State ex rel. State Highway Commission v. Heim
    • United States
    • Missouri Court of Appeals
    • July 13, 1972
    ...1059, 1063(6); Kelley v. Hudson, Mo.App., 407 S.W.2d 553, 558(14); Borgman v. Boten, Mo.App., 225 S.W.2d 360, 362(1).4 Allen v. Gibbons, Mo.App., 425 S.W.2d 243, 247; Fletcher v. Kansas City Rys. Co., Mo.App., 221 S.W. 1070, 1072(6); Janes v. Levee Dist. No. 2 of Dunklin County, Mo.App., 18......
  • State v. Hunter, WD
    • United States
    • Missouri Court of Appeals
    • August 18, 1981
    ...represented by the act of the court clerk in transcribing the judgment. Massey v. State, 608 S.W.2d 152 (Mo.App.1980); Allen v. Gibbons, 425 S.W.2d 243 (Mo.App.1968); and Rehm v. Fishman, 395 S.W.2d 251 The record shows that the trial court entered the sentence of ten years upon the convict......
  • Williams v. Junior College Dist. of Cent. Southwest Missouri
    • United States
    • Missouri Court of Appeals
    • September 22, 1995
    ...Ctr., 713 S.W.2d 15, 18 (Mo.App.1986); State ex rel. Highway Comm'n. v. Heim, 483 S.W.2d 410, 412-413 (Mo.App.1972); Allen v. Gibbons, 425 S.W.2d 243, 247 (Mo.App.1968); need not be decided. The testimony complained of was at least in part cumulative and was not so prejudicial as to require......
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