Becher v. Deuser

• Decision Date: 18 June 1902
• Citation: 69 S.W. 363,169 Mo. 159
• Parties: BECHER v. DEUSER.
• Court: Missouri Supreme Court

69 S.W. 363

169 Mo. 159

BECHER v. DEUSER.

Supreme Court of Missouri, Division No. 1.

June 18, 1902.

JUDGMENTS — AMENDMENT NUNC PRO TUNC.

1. A judgment cannot be amended nunc pro tunc on oral testimony, but only on evidence furnished by the papers, files, or records in the cause.

2. The stenographer's notes of proceedings in an action do not constitute a paper or file in the cause which can be made the basis of an amendment of a judgment nunc pro tunc.

3. A memorandum for a judgment drawn by an attorney to be copied by the clerk does not constitute a record, paper, or file in the action which can be made the basis of an amendment of a judgment nunc pro tunc.

4. Where a record or paper in an action is lost, its contents cannot be shown by parol, but it must first be established and supplied in the manner prescribed by Rev. St. 1899, § 4560, et seq.

5. Where the trial judge has refused to amend a judgment, the appellate court should not require him to make the amendment unless it clearly and conclusively appears that he violated his duty, and acted arbitrarily in the face of legal and proper evidence.

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Engelbert Becher against Phillip Deuser. Judgment for plaintiff, and from an order refusing to amend it nunc pro tunc he appeals. Affirmed.

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. 3,143, 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. 3,143, 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 22d 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, 1 foot 6½ inches, running to a point in the south line of lot 6, 61 feet from the front of the lot." Upon this showing the circuit court overruled the motion to amend the judgment, and the plaintiff appealed.

Geo. W. Lubke, Jr., for appellant. Theo. H. Culver, for respondent.

MARSHALL, J. (after stating the facts).

The plaintiff asked in his petition to recover a parallelogram, or rather a rectangle, fronting 1 foot 6½ inches on the east side of Ivory avenue, and being the southern 1 foot 6½ inches of lot 5 of block 33 of survey No 3 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...