Calnane v. Calnane

• Decision Date: 04 June 1929
• Parties: MARY F. CALNANE, RESPONDENT, v. MARY E. CALNANE, APPELLANT. [*]
• Court: Missouri Court of Appeals

17 S.W.2d 566

223 Mo.App. 381

MARY F. CALNANE, RESPONDENT, v. MARY E. CALNANE, APPELLANT. ^[*]

Court of Appeals of Missouri, St. Louis

June 4, 1929

Appeal from the Circuit Court of the City of St. Louis.--Hon William H. Killoren, Judge.

REVERSED.

Judgment reversed.

Wilbur C. Schwartz and Charles E. Morrow for appellant.

(1) The judgment actually entered in the record by the clerk is presumed to be the one rendered by the court and cannot be corrected by a nunc pro tunc entry at a subsequent term unless the record, the clerk's minutes, the judge's docket or some other paper in the cause shows to a reasonable degree of absolute certainty that another and different judgment was actually rendered by the court than the one entered. Burnside v. Wand, 170 Mo. 531; Burns v Sullivan, 90 Mo.App. 1. (2) There is no record, clerk's minutes, judge's docket or any other paper in evidence that shows that the court rendered any judgment other than the one actually written by the clerk and there was no legal evidence to show that the judgment as amended nunc pro tunc by the court was the one actually rendered at the time by the court. Burnside v. Wand, 170 Mo. 531; Burns v. Sullivan, 90 Mo.App. 1. (3) The judgment actually entered in this cause was right under the law. In re Estate of Soulard, 141 Mo. 642; Sec. 1694, R. S. 1919. (4) This suit is a will contest between the heirs and legatees personally, and not the estate of John A. Calnane, deceased, and in no event can the costs of this proceeding be adjudged against the estate. In re Estate of Soulard, 141 Mo. 642. (5) Mary E. Calnane, defendant, is not made a party to this proceeding as executrix of the will. For that reason no judgment can be rendered against her as executrix. In re Estate of Soulard, 141 Mo. 642. (6) Under the will of John A. Calnane, deceased, offered in evidence, all the legatees except Mary E. Calnane, are given specific bequests and legacies and Mary E. Calnane is the residuary legatee and under the amended judgment will have to pay all the costs, notwithstanding the fact that the plaintiff lost the suit and the defendants won and the will was sustained. The amended judgment is not only inequitable and unjust, but is not the law. In re Estate of Soulard, 141 Mo. 642; Sec. 1694, R. S. 1919.

Leahy, Saunders & Walther for respondent.

(1) An action to contest a will is purely statutory and is a proceeding in rem to prove the will in solemn form, in which the jurisdiction of the circuit court is derivative and not original. The burden of so proving the will is upon those claiming under it and even if the contest be abandoned this burden still devolves upon the proponents, and contestants cannot take a voluntary nonsuit or dismiss. Secs. 525, 527, R. S. 1919; Bradford v. Blossom, 207 Mo. 177; Braeuel v. Reuther, 270 Mo. 603; Cash v. Lust, 142 Mo. 630; 2 Woerner on Administration (3 Ed.), p. 706, sec. 215; p. 713, sec. 216; p. 716, sec. 217; Johnson v. Brewn, 277 Mo. 392, 210 S.W. 55, 56. (2) A motion to secure costs will not lie in a will contest and the court costs are borne by the estate, whether the will be rejected or sustained. Cash v. Lust, 142 Mo. 630; 40 Cyc, p. 1364; 28 R. C. L., p. 407, sec. 419; Jones v. Roberts, 96 Wis. 427, 71 N.W. 883; 3 Woerner on Administration (3 Ed.), p. 1788, sec. 517; Frost v. Wheeler, 43 N.J.Eq. 573, 12 A. 612; Meeker v. Meeker, 37 N.W. 773; In re Carman's Will, 48 N.W. 985; Kirsher v. Kirsher, 120 Iowa 337, 94 N.W. 846. (3) Where the record entry shows an irregular judgment or one not actually rendered by the court or one contrary to the law or decisions of this State, it may be corrected nunc pro tunc after the term has passed, and the record entry itself will furnish the basis for such correction. Stacker v. Cooper Circuit Court, 25 Mo. 401; Lexington & St. Louis R. R. Co. v. Mockbie, 63 Mo. 348; State v. Taylor, 188 Mo.App. 271; Saunders v. Scott, 132 Mo.App. 209; Montz v. Moran, 263 Mo. 252.

NIPPER, J. Haid, P. J., and Becker, J., concur.

OPINION

NIPPER, J.

Plaintiff, Mary F. Calnane, filed her petition and motion for an order nunc pro tunc, amending the judgment of the circuit court. The circuit judge entered an order nunc pro tunc, and the defendant, Mary E. Calnane, has appealed from this order.

The title of the original cause was Mary F. Calnane v. Mary E. Calnane and certain corporations. The object and purpose of the original suit was to contest the will of John A. Calnane. This suit was tried to a jury at the December term, 1926, of the circuit court of the city of St. Louis. The verdict of the jury was rendered on January 7, 1927, and upheld the will of John A. Calnane. Upon the return of this verdict the court entered judgment adjudging the paper to be the last will and testament of John A. Calnane. The judge's trial docket contained the following memorandum: "Will sustained." The record book of the proceedings, thereafter entered in the transcript room of the circuit court, contained the following: "It is further ordered by the court that the cost of this proceeding be borne by the plaintiff, for which let execution issue."

Afterwards, and at the October term, 1927, of the circuit court of the city of St. Louis, plaintiff filed her petition for an order nunc pro tunc, to correct that portion of the former judgment with reference to the costs in the case, the grounds for the petition being that the entry in the former judgment taxing the costs against the plaintiff was an erroneous order and was not in fact a part of the original judgment rendered, and was contrary to the law of this State. After a hearing, the court made an order taxing the costs against the estate of John A. Calnane, in the hands of Mary E. Calnane, executrix. The costs amounted to $ 944.05.

The evidence discloses that Mary E. Calnane was the only beneficiary in the will who was not given a specific bequest, and that she was a residuary legatee. From the order and judgment correcting the record, Mary E. Calnane has in due time and proper manner perfected her appeal.

The sole question presented on appeal is whether or not the trial court, under this state of the record, had a right to enter the judgment it did to correct the judgment as to costs which appeared on the record.

An action to contest a will is a proceeding in rem. The burden of proving the will is upon those claiming under it and if the contest be abandoned the burden still devolves upon the proponents. The argument of respondent here is that the court had no right in the first instance to make any order taxing the costs against Mary F. Calnane, and that as the court had no right to enter such a judgment it was entirely proper to correct the same by a nunc pro tunc entry to conform to the law. Generally speaking, in a suit of this kind the costs are taxed against the estate. However, this is not mandatory. The court may enter...