Atkinson v. Atchison, Topeka & Santa Fe R.R. Co.

• Citation: 81 Mo. 50
• Parties: ATKINSON v. THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, Appellant
• Decision Date: 31 October 1883
• Court: Missouri Supreme Court

81 Mo. 50

ATKINSON

v.THE ATCHISON, TOPEKA & SANTA FE RAILROAD COMPANY, Appellant

Supreme Court of Missouri.

October Term, 1883.

Appeal from Cass Circuit Court.--HON. NOAH M. GIVAN, Judge.

AFFIRMED.

Lathrop & Smith for appellant.

The judgment should be corrected in accordance with what the docket and minutes show. The language is unequivocal, and is absolutely controlling. What may be in the breast of the court, even in regard to the matter, cannot avail, inasmuch as the motion to correct the entry was made after the close of the term at which the cause was continued. Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; Gibson v. Chouteau, 45 Mo. 171; Saxton v. Smith, 50 Mo. 490; Priest v. McMaster, 52 Mo. 60; Jillett v. Union National Bank, 56 Mo. 304; Dunn v. Raley, 58 Mo. 134; Fletcher v. Coombs, 58 Mo. 430, 434; Woolridge v. Quinn, 70 Mo. 370; Belkin v. Rhodes, 76 Mo. 643. The service in this case is fatally defective. Neither the justice nor the circuit court acquired any jurisdiction of defendant. The motions to dismiss and in arrest of judgment, should have been sustained. R. S., § 748; Jordan v. Railroad Co., 61 Mo. 52.

J. M. Williams for respondent.

EWING, C.

This was a suit before a justice of the peace for killing a steer.

At the trial before the justice defendant entered no appearance. Judgment by default was rendered for plaintiff for $104. Defendant then appeared, specially, and moved to set aside the default. The motion was overruled, and defendant appealed to the circuit court. In the circuit court, on the 30th day of November, 1880, as appears upon the minutes kept by the clerk, and by the entry of the judge on his docket, the cause was continued on the application and at the cost of plaintiff, upon the verbal application of his attorney. On the 21st day of March, 1881, defendant appeared, specially, and filed a motion to dismiss the cause, for the reason that neither the circuit court, nor the justice before whom the cause was tried, had any jurisdiction of either the person of the defendant, or of the subject matter of the suit. On the 22nd day of March, 1881, said motion was taken up. Plaintiff produced the record entry made in the cause by the clerk at the November term, 1880, whereby it appeared that said cause was continued by consent of parties, instead of “on the application, and at the cost of plaintiff.” Defendant insisted that said entry was erroneous, and thereupon, withdrew its motion to dismiss, and appearing, specially, filed a motion for a nunc pro tunc entry for the purpose of making the record of the proceedings had concerning the continuance on the 30th day of November, 1880, show that the cause was not continued by consent, but on the application, and at the cost of plaintiff.

Said motion for a nunc pro tunc entry was taken up and submitted on the 24th day of March, 1881. Defendant in support of the motion, offered in evidence the entries on the docket of the judge and the minutes of the clerk in relation to said continuance. The entry on the judge's docket is as follows:

“A. C. Atkinson, Appellee, vs. A. T. & S. F. R. R. Co., Appellant. Continued on appn & at costs of plff, 11:30.” The minutes of the clerk read as follows:

“HARRISONVILLE, MO., Tuesday, Nov. 30th, 1880.

7084, Atkinson vs. A., T. & S. F. R'y Co. Cont. on application at cost of plff.”

Defendant then read in evidence the following motion:

“In the circuit court of Cass county, state of Missouri. A. C. Atkinson, plaintiff, vs. A. T. & S F. R. R. Co., defendant. Now, at this day, comes the defendant and appearing, specially, for the purpose of this motion, moves the court to dismiss this suit, because neither this court nor the justice before whom the case was originally tried, had any jurisdiction over this defendant, for the reason that there was no sufficient service of process upon the defendant”

This was all the evidence offered by defendant in support of the motion for a nunc pro tunc entry.

Plaintiff thereupon offered, and read in evidence, the record entry made by the clerk on the said 30th day of November, 1880, in regard to said continuance, which is as follows:

“Now, at this day come the parties aforesaid, by their attorneys, and by consent it is ordered, that this cause be, and is hereby continued on the application, and at the cost of said plaintiff. Wherefore, it is considered and adjudged by the court, that said defendant have, and recover of and from said plaintiff, its costs and charges herein at this term of court expended, and have thereof execution.”

The court overruled the motion for a nunc pro tunc entry. Defendant excepted. Defendant thereupon appearing, specially, filed its motion to dismiss the cause for the reason that defendant had never been legally served with process, and that the court had never acquired jurisdiction of the person of ...