Boudreau v. Myers

• Decision Date: 20 December 1932
• Docket Number: No. 22107.,22107.
• Citation: 54 S.W.2d 998
• Parties: BOUDREAU v. MYERS et al.
• Court: Missouri Court of Appeals

54 S.W.2d 998

BOUDREAU v. MYERS et al.

No. 22107.

St. Louis Court of Appeals. Missouri.

December 20, 1932.

Rehearing Denied December 28, 1932.

Appeal from Circuit Court, Marion County; Hon. Charles T. Hays, Judge.

"Not to be published in State Reports."

Action by Staunton E. Boudreau against Isadore F. Myers and another. From the judgment entered on the verdict as amended on defendants' motion, plaintiff appeals.

Affirmed.

Harry Carstarphen, of Hannibal, and Staunton E. Boudreau, of St. Louis, for appellant.

Rendlen, White & Rendlen, of Hannibal, for respondents.

BECKER, J.

By this action plaintiff seeks to recover an attorney's fee for services alleged to have been rendered the defendants. The case was tried to a jury who returned a verdict which the court thereafter corrected on defendants' motion, and from the judgment entered upon such verdict, as amended, plaintiff in due course appeals.

No bill of exceptions was filed below and the case is therefore before us on the record proper. The abstract of the record contains a motion for new trial but as it was not made a part of the record by a bill of exceptions it cannot be considered on appeal. Mastin v. Ireland, 320 Mo. 617, 8 S.W.(2d) 900.

We gather from appellant's abstract of the record that trial was had upon plaintiff's petition for attorney's fees as against the two individual defendants; that at the conclusion of all of the evidence "instructions as given by the court are read"; and that the jury in due course returned the following verdict: "We, the jury, find the issues for defendant Gervin. F. P. Dodds, Foreman," which "* * * verdict is received by the court, ordered filed and recorded, * * *" "and upon the verdict of the jury the defendants herein are discharged, and it is considered, ordered and adjudged by the court that the defendants herein have of and recover from the plaintiff herein their costs herein expended and have execution therefor."

There next appears a record entry that plaintiff filed a motion for new trial on the same day that judgment was entered, and that said motion, by consent of the parties, was passed to the next regular term of court, and that the jury was discharged from further service.

At the following term the record discloses that the defendants filed and submitted a motion to correct the verdict, and "being fully advised of and concerning the premises, the court doth sustain the motion to correct the verdict, * * * and doth overrule motion for new trial. And now leave of the court is granted the defendants to correct the verdict of the jury by inserting the name of defendant Myers therein. And it is considered, ordered and adjudged by the court that judgment on the verdict as herein corrected stands final."

No exception was noted by plaintiff to the action of the court in sustaining defendants' motion to correct the verdict.

In this state of the record appellant contends here that the court had no jurisdiction to entertain or sustain defendants' motion to amend or correct the jury's verdict, and that, therefore, the court erred in making or authorizing the amendment or correction, and in entering judgment on the amended or corrected verdict. This point is not well taken.

It needs no citation of authorities in support of the rule that a court has the right to amend a verdict after the discharge of the jury, such right being limited however to matters of form or clerical errors clearly made manifest by the record, and never to matters of substance required to be passed on by the jury, which in their nature are essential to the determination of the case and subject to dispute. Powell v. Bierman (Mo. App.) 22 S.W.(2d) 854. "* * * Even then, as we understand the law, the court would have authority to amend the verdict so as to make it conform to the real intention of the jury, provided it in no manner trespassed upon the domain of that body. Such amendments are permitted, and have been from the early history of the law, even after lapse of the term at which the case was tried, and even after writ of error and joinder in error. * * *" Keyes v. Chicago, B. & Q. R. Co., 326 Mo. 236, 31 S.W.(2d) 50, 57; Kreibohm v. Yancey, 154 Mo. 67, 69, 79, 82, 55 S. W. 260.

Because of the fact that no exceptions were taken to the ruling of the court in the sustaining of defendants' motion to correct the verdict, such facts as may be alleged therein as grounds for the nunc pro tunc correction of the verdict are not before us. In this situation there is nothing before us to convict the trial court of error in sustaining defendants' said motion, and we must, therefore, presume that the trial court in sustaining defendants' motion to amend the verdict nunc pro tunc did so within the purview of the law with reference to such amendments.

But even though the action of the trial court in correcting the verdict nunc pro tunc were here for review and held error for want of jurisdiction, appellant's...