Clancy v. Luyties Realty Co.

• Citation: 10 S.W.2d 914
• Decision Date: 16 November 1928
• Docket Number: No. 26848.,26848.
• Parties: WILLIAM M. CLANCY, Plaintiff in Error, v. HERMAN C.G. LUYTIES REALTY COMPANY.
• Court: United States State Supreme Court of Missouri

10 S.W.2d 914

WILLIAM M. CLANCY, Plaintiff in Error, v. HERMAN C.G. LUYTIES REALTY COMPANY.

No. 26848.

Supreme Court of Missouri, Division One.

November 16, 1928.

Writ of Error to Circuit Court of St. Louis County. — Hon. G.A. Wurdeman, Judge.

REVERSED AND REMANDED.

Raleigh McCormick and Lee A. Hall for plaintiff in error.

(1) After the expiration of the term at which a final judgment or decree is entered, the control of the court thereover ceases, except to allow such formal amendments of the pleadings in support of the judgment and to correct formal errors of the clerk as is authorized by Sec. 1277, R.S. 1919. Burnside v. Wand, 170 Mo. 531, 543; Hall v. Lamb, 123 Mo. 633; Harbor v. Railroad Co., 32 Mo. 423; Ashby v. Glasgow, 7 Mo. 320. (2) The power of a chancellor to make a nunc pro tunc entry in a cause can never be employed to correct mistakes of the judge in rendering final judgment, but is confined to the correction of clerical mistakes and formal errors made necessary to conform the judgment entered to the final decree. Sec. 1277, R.S. 1919; Hall v. Lamb, supra. (3) The court, in amending its decree in material respects without notice to plaintiff and opportunity to be heard, denied to plaintiff due process of law, in violation of Sec. 30, Art. 2, Mo. Constitution, and its amended decree was and is void. St. Louis v. Mo. Pac. Ry. Co., 211 S.W. 671; Barber Asphalt Co. v. Ridge, 169 Mo. 376; Hider v. Sharp, 257 S.W. 112. (4) Defendant was not entitled to any relief, because it did not in and by its motion for a nunc pro tunc entry offer to do equity. "He who seeks equity must do equity." If it should be held that the court, under the peculiar circumstances of this case, had power to make and cause to be entered the amended decree, still such amended decree as entered upon the face of the record failed to do justice between the parties and failed to do justice to the plaintiff in error. The motion nunc pro tunc may be treated as a supplemental bill and justice done herein. 21 C.J. 547, sec. 667.

GENTRY, J.

The plaintiff in error was plaintiff in a suit asking for specific performance of a written contract, executed by defendant, a domestic corporation, hereinafter called the realty company, whereby it was alleged that it agreed to convey to plaintiff certain real estate in Kenwood Springs in St. Louis County, Missouri. Attached to the petition is an exhibit, which is the written contract for the sale of said property signed by the parties, and dated June 4, 1919. One O.B. Bottorff was also made a defendant. The answer of the defendants admitted the incorporation of the realty company, but denied generally the other allegations or the petition. A trial at the May term, 1923, of the circuit court, on July 5, 1923, resulted in the finding for plaintiff and a decree requiring the defendant realty company to perform the contract by executing to the plaintiff a general warranty deed to the property. There was a finding for the defendant Bottorff. The decree, as entered, made no mention of a deed of trust on the property, or that the conveyance required to be made was to be subject to a deed of trust. In the decree, the court adjudged the costs against the plaintiff.

No appeal was taken by either party, although on July 10, 1923, plaintiff filed a motion for a new trial. This motion was overruled at the September term, 1923, on December 3, 1923. At the January term, 1924, and on April 25, 1924, defendant realty company filed a motion for an order nunc pro tunc to correct the judgment entered. On said day defendant appeared in court by its attorney, but the record does not show that plaintiff was either present or was notified that such a motion would be filed and presented to the court that day. After certain evidence offered by defendant realty company, the court made an order nunc pro tunc, amending said decree; the amendment consisted of the insertion of the following words: "subject, however, to the deed of trust now of record upon said property in the amount of $500." The inserted words follow immediately after the words, "in accordance with the terms and conditions of said contract."

There is no bill of exceptions in this case and, as above stated, no appeal was taken; but plaintiff has sued out a writ of error and claims (1) that the trial court was without authority to make an order nunc pro tunc, on motion of defendant, at a subsequent term of court from that at which the judgment was rendered without notice to plaintiff, and (2) that the court erred in taxing the costs of this cause against the plaintiff.

There being no bill of exceptions, this court cannot either review the testimony or the alleged statements made by the trial judge, nor the remarks of counsel, nor the assignments of error set forth in the motion for new trial. [Newton v. Newton, 162 Mo. l.c. 182; State ex rel. v. Boyle, 181 Mo. l.c. 696.]

I. As errors sometimes occur in a judgment, due to a mistake in entering the same, our law very wisely provides that the court may at a later term correct such judgment by an order nunc pro tunc. This is usually done by a motion filed by one party, and the same is taken up and considered by the court, after notice to the opposite party. It is fundamental that an order nunc pro tunc cannot be made unless there is some minute, order or paper in the case upon which to base the same. This has long been the law in this State. [Hyde v. Curling, 10 Mo. l.c. 362; Gibson v. Chouteau, 45 Mo. l.c. 173; Gamble v. Daugherty, 71 Mo. 599; Railroad v. Holschlag, 144 Mo. l.c. 256; Young v. Young, 165 Mo. l.c. 530; 1 Freeman on Judgments, sec. 127; 2 Thompson on Trials, secs. 2820-6.] In other words, the court cannot, at a subsequent term, correct a judgment at a former term, as said judgment has become final, and the court has lost jurisdiction. [Jeude v. Sims, 258 Mo. l.c. 44.] As stated by an eminent author, "The law does not permit any judicial tribunal to exercise a revisory power over its own...