Burnside v. Wand

• Decision Date: 16 December 1902
• Citation: 71 S.W. 337,170 Mo. 531
• Parties: BURNSIDE v. WAND.
• Court: Missouri Supreme Court

71 S.W. 337

170 Mo. 531.

BURNSIDE v. WAND.

Supreme Court of Missouri.

December 16, 1902.

ACTION ON BOND—JUDGMENT—AMENDMENT— NUNC PRO TUNC—STATUTES —CONSTRUCTION.

1. The petition, in an action against a surety on a bond conditioned for the payment of a monthly allowance by the principal therein to plaintiff as alimony, prayed for judgment for the amount of the penalty of the bond, and that execution issue for $375, the sum then in arrears, as damages. The court ordered judgment for plaintiff, and his memorandum given the clerk recited, "Judgment for plaintiff." The clerk entered in his minute book, "Judgment for plaintiff for $6,000, penalty of bond," damages $384.50, and also entered judgment on the records for $6,000, to be satisfied on the payment of $384.50 damages and the costs. This judgment was set aside, but re-entered at the same term of court. Held, that the record. papers, and files failed to show any error or mistake on the part of the clerk in entering the judgment, so as to authorize its amendment or correction by nunc pro tunc order at a subsequent term.

2. The motion filed to correct the judgment asked the court "to correct by nunc pro tunc order the informality in entry of judgment in this cause, so that it shall not express the debt to be discharged on the payment of damages, but shall express the amount of damages awarded, with provision for execution therefor, and a further provision that the judgment for the penalty of the bond shall stand as security for further breaches," etc. Held, that the motion was not based on the claim that the original judgment was entered through any error or mistake on the part of the clerk.

3. Rev. St. 1899, §§ 464-467, provide that in actions on penal bonds for the payment of money the plaintiff shall set forth the conditions thereof, and may assign as many breaches as he may think proper, and directs that the judgment shall be for the sum really due according to the conditions, and execution shall issue thereon accordingly. Sections 468-477 declare that in actions on penal bonds for the breach of any condition, other than for the payment of money, the judgment shall stand as security for future breaches. The petition in an action against a surety on a bond, conditioned for the payment of a monthly allowance by the principal therein to plaintiff as alimony, prayed for judgment for the penalty of the bond, and that execution issue for a fixed sum, the amount then in arrears, as damages. The judgment was for plaintiff for the penalty of the bond, to be satisfied on the payment of the sum then in arrears. Held, that plaintiff and the court having treated the bond as a bond for the payment of money, the judgment could not be modified so as to provide that it should stand as security for further breaches.

4. A bond conditioned for the payment of a monthly allowance by the principal therein to his wife as alimony is not a penal bond within Rev. St. 1899, §§ 468-477, relating to actions on penal bonds for the breach of conditions other than for the payment of money, and providing that judgments in such actions shall stand as security for future breaches.

5. 2 Rev. St. 1825, pp. 615, 616, enacted in 1821, related to penal bonds, and copied the English statutes on the subject. Rev. St. 1899, §§ 464-477, which modify these provisions, are in language and arrangement nearly identical to 2 Rev. St. N. Y. (1st Ed.) part 3, c. 6, tit. 2, §§ 12, 13, p. 353, and part 3, c. 6, tit. 6, § 5, p. 378, enacted in 1829. Held, that the sections of the Revised Statutes of 1899 were borrowed from the statutes of New York, and must be construed in connection with the decisions of the courts of that state rendered before their enactment in Missouri.

In banc. Appeal from St. Louis circuit court; Jas. E. Withrow, Judge.

Action by Elizabeth J. Burnside against Thomas Wand. From a judgment amending by a nunc pro tunc order a judgment therefor rendered in favor of plaintiff, defendant appeals. Reversed.

The following is the opinion delivered by SHERWOOD, J., in division No. 2:

This case had its origin in the following circumstances now about to be related:

Elizabeth Burnside obtained a divorce from her husband, James Burnside, in the circuit court of St. Louis on June 5, 1894, with an allowance of $50 a month for alimony and maintenance of herself and children. Thereafter, on March 29, 1895, the court, on plaintiff's motion, ordered the defendant in the divorce case to give bond, with surety, "in the sum of six thousand dollars within ten days, conditioned for the payment of the monthly allowance of fifty dollars a month to plaintiff," and, in default thereof, the decree to be a lien on his real estate. Pursuant to this order, on the 8th day of April, 1895, James Burnside, as principal, and Thomas Wand, the defendant herein, as surety, executed a bond to Elizabeth Burnside, containing the following recitals and conditions: "Now, therefore, be it known that we, the undersigned, James Burnside, as principal, and Thomas Wand, as surety, are held and firmly bound unto the said Elizabeth J. Burnside in the sum of six thousand dollars for the payment of which, well and truly to be made, we do bind ourselves, our heirs, executors, and administrators, jointly and severally, firmly by these presents. The condition of this bond is such, however, that if the said James Burnside shall well and truly pay unto the said Elizabeth J. Burnside the said monthly allowance of fifty dollars a month to plaintiff mentioned in said order of March 29th, 1895, in accordance with the terms and provisions of the above recited decree of June 5th, 1894, then this bond to be null and void; otherwise to remain in full force and effect." James Burnside failed to pay the $50 a month, but became in arrears on account thereof as follows: Fifteen dollars of the $50 due on February 1, 1897, and $50 a month from March 1, 1897, to September 1, 1897, aggregating $375. Thereupon, on September 9, 1897, Elizabeth Burnside brought suit on said bond against Thomas Wand, alleging the facts here stated, and assigning as a breach of said bond the failure to make the payments above specified. The prayer of the petition is as follows: "Wherefore plaintiff prays judgment against defendant, Thomas Wand, for six thousand dollars, the penalty of said bond, and that execution issue for the sum of three hundred and sixty-five dollars, with interest, as damages aforesaid, and the costs." James Burnside was not made a party to that suit, nor does it appear from the record before us whatever became of him. That case was tried without a jury, and on the 20th day of April, 1898, the court handed down the following memorandum of its decision: "E. J. Burnside v. Thomas Wand. Judgment for plaintiff." Thereupon counsel for Mrs. Burnside gave to the clerk of the court the following memorandum, which the clerk filed with the papers in the case: "In the Circuit Court of the City of St. Louis, April 20th, 1898. Eliza J. Burnside vs. Thomas Wand. I compute amount due plaintiff at three hundred, eighty-four and fifty-hundreths dollars ($384.50)." Thereupon the clerk made the following entry in his minute book: "1898, April 20. Judgment for plaintiff for $6,000, penalty of bond; damages $384.50." The clerk then entered the following judgment upon the records: "E. J. Burnside v. Thomas Wand. Judgment for plaintiff. St. Louis, April 20, 1898. Now, at this day, this cause coming on for hearing, come the parties hereto, by their respective attorneys, and submit said cause to the court upon the pleading and evidence adduced, and the court having heard and duly considered the same, and being fully advised of and concerning the premises, doth find that the plaintiff is entitled to recover of the defendant the sum of six thousand ($6,000) dollars, the penalty of the bond sued on, with a further judgment of three hundred and eighty-four and fifty one-hundreths ($384.50) dollars damages. It is therefore considered and adjudged by the court that the plaintiff recover of the defendant the sum of six thousand ($6,000) dollars, the penalty of the bond sued on, to be satisfied upon the payment of the sum of three hundred and eighty-four and fifty one-hundreths ($384.50) dollars damages, together with her costs and charges in this behalf expended, and that execution issue therefor." This judgment was set aside and re-entered, in the same terms, on April 29, 1898. The defendant appealed from this judgment to the St. Louis court of appeals, and that court affirmed the judgment of the lower court on the 13th day of December, 1898. The defendant thereupon paid to the plaintiff's attorney the amount of the judgment, with interest, aggregating $425.45, and on January 3, 1899, the plaintiff acknowledged in open court satisfaction of the judgment, and her attorney filed the following memorandum: "Satisfaction of judgment acknowledged in open court." On the 14th of February, 1899, plaintiff, after notice to defendant, filed a motion in the St. Louis court of appeals to correct the judgment of the circuit court, "so as to make said judgment to stand as security for future breaches, and to provide in terms for execution for damages assessed, in conformity with the provisions of chapter 22, art. 1, of Revised Statutes of Missouri, 1889." The court of appeals struck the motion from the files, and directed the plaintiff to apply to the circuit court for relief. The plaintiff then, on February 27, 1899, filed the following motion in the circuit court, giving the defendant notice thereof: "Now comes the plaintiff, by her attorney, and moves the court to correct by nunc pro tunc order the informality in entry of judgment in this cause, so that it shall not express the debt to be discharged upon the payment of damages, but shall express the amount of damages awarded, with provision for execution therefor, and a further provision that the judgment for the penalty of the bond, six...