Becher v. Deuser
| Decision Date | 18 June 1902 |
| Parties | BECHER, Appellant, v. DEUSER |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.
Affirmed.
George W. Lubke, Jr., for appellant.
(1) An erroneous judgment may be corrected by the court rendering it, at any time, whether before or after the close of the term at which it is rendered, provided sufficient memoranda exist in the minutes of the judge, or in the record or files of the case by which to correct the erroneous entry, which has been the result of a clerical mistake or misprision. Railroad v. Holschlag, 144 Mo. 253; Gamble v Daugherty, 71 Mo. 599; Evans v. Fisher, 26 Mo.App. 546; Farley v. Cammann, 43 Mo.App. 168. (2) The notes of the official stenographer are a sufficient minute of the judgment actually rendered by which the judgment may be corrected. Sullivan v. Eddy, 154 Ill. 199; Padgit v. Moll, 159 Mo. 155; R. S. 1899 secs. 10105, 10106. (3) The memorandum of plaintiff's attorney, filed with the clerk, describing the property for the possession of which the court rendered judgment, the contents of which, on account of the loss of the original being supplied by secondary evidence, is such memorandum in the files of the cause as will authorize the correction of the judgment. Saxton v. Smith, 50 Mo. 490; Belkin v. Rhodes, 76 Mo. 643.
Theo. H. Culver for respondent.
(1) A judgment can not be corrected by the court after the expiration of the term in which it was rendered. Railroad v. Holschlag, 144 Mo. 253. (2) A clerical error in transcribing a judgment can not be corrected after the expiration of the term in which it was made unless there is matter of record to warrant it. It is presumptively the judgment of the court. Gamble v. Daugherty, 71 Mo. 599; Railroad v. Holschlag, supra; Belkin v. Rhodes, 76 Mo. 650.
This is an appeal by the plaintiff from a refusal of the circuit court to amend a judgment in ejectment at a term subsequent to that at which the judgment was rendered.
The petition was in the usual form, and the property described as follows: "that certain piece or parcel of land in the city of St. Louis, fronting on Ivory avenue, in block No. 3143, of said city, and being the southern one foot, six and one-half inches of lot number five, of block number thirty-three, of survey number three of Carondelet, by John C. Ivory." The answer was a general denial.
The case came on for trial at the October term, 1899, on November 22, 1899. The defendant did not appear. The plaintiff adduced his evidence and the court entered a judgment for the plaintiff describing the premises as follows: "A part of lot 5 of block 33, of survey No. 3, of Carondelet, by John C. Ivory, and in City Block No. 3143, beginning at the intersection of the south line of said lot, with the east line of Ivory avenue," * * * * [These asterisks do not appear in the judgment but are placed there herein to pointedly call attention to the alleged clerical error in the judgment which it is sought to correct, nunc pro tunc, by inserting a call in the description which it is claimed was omitted by the misprision of the clerk] "one foot, six and one-half inches to a point, thence in a direct line towards the south line of said lot to a point in said south line sixty-one feet east of its intersection with said line of Ivory avenue, thence westwardly along said south line sixty-one feet to the point of beginning."
On the twenty-second of March, 1900, at the February term, 1900, the plaintiff moved to have the judgment amended, nunc pro tunc, by inserting at the place in the judgment marked with asterisks, the words, "thence northwardly along the east line of Ivory avenue."
In support of this motion the plaintiff proved, orally, by the clerk of the court that he entered the judgment from a memorandum which the plaintiff's attorney had furnished him for the judgment, and which, as is customary, he placed with the papers in the case, but which he had been unable to find, and that he endeavored to follow the memorandum. Counsel for plaintiff then testified orally that at the close of the trial, with a plat before him, he prepared the memorandum for the judgment, and gave it to the clerk, and that it was exactly as the judgment was entered, with the exception that it contained the words sought by this motion to have inserted at the place where the asterisks appear, to-wit, "thence northwardly along the east line of Ivory avenue." Plaintiff then showed by the notes of the official stenographer of the court that at the close of the plaintiff's case the court said: "You may take judgment for possession of the property, one foot six and one-half inches, running to a point in the south line of lot 6, sixty-one feet from the front of the lot."
Upon this showing the circuit court overruled the motion to amend the judgment and the plaintiff appealed.
I.
The plaintiff asked in his petition to recover a parallelogram, or rather, a rectangle, fronting one foot six and one-half inches on the east side of Ivory avenue, and being the southern one foot six and one-half inches of lot five of block thirty-three of survey number three of Carondelet by John C. Ivory. The depth of the lot is not given, and could only be ascertained by reference to the survey and plat.
The judgment as entered follows the description of the petition as to the lot, block and survey number, and then instead of following the further description in the petition, undertakes to describe the land by metes and bounds, with the result that it amounts to absolutely nothing, because it starts at the intersection of the south line of lot five with the east line of Ivory avenue, then says, "one foot six and one-half inches to a point," without saying whether that course was north, south, east or west from the initial point and then describes the next course as "thence in a direct line towards the south line of said lot to a point in said south line sixty-one feet east of its intersection with said Ivory avenue, thence westwardly along said south line sixty-one feet to the point of beginning." This description, therefore, starts at the intersection of the south line of lot five with the east line of Ivory avenue, runs east to a point in the south line of lot five, distant sixty-one feet from the point of intersection, the initial point, and then back along the same line to the place of beginning. The call, "one foot six and one-half inches to a point," is, therefore, perfectly meaningless, and the effect of the judgment is to give the...
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