Clayton v. Holland Furnace Co.

• Decision Date: 02 April 1957
• Docket Number: No. 29607,29607
• Citation: 300 S.W.2d 824
• Parties: Dora CLAYTON (Plaintiff), Appellant, v. HOLLAND FURNACE COMPANY, a Corporation (Defendant), Respondent.
• Court: Missouri Court of Appeals

Page 824

300 S.W.2d 824

Dora CLAYTON (Plaintiff), Appellant, v. HOLLAND FURNACE COMPANY, a Corporation (Defendant), Respondent.

No. 29607.

St. Louis Court of Appeals, Missouri.

April 2, 1957.

Henry D. Espy, St. Louis, for appellant.

Flynn & Parker, Joseph L. Badaracco, St. Louis, for respondent.

ELMO B. HUNTER, Special Judge.

This is an action for damages for breach of contract. Dora Clayton, plaintiff-appellant, contracted with Holland Furnace Corporation, defendant-respondent, for the installation of a forced hot air heating system in her home. On her claim that it was not installed and did not operate in the manner provided in the contract, she recovered a judgment in the magistrate court for $1,500. On a trial de novo on appeal to the Circuit Court of the City of St. Louis before Judge Michael J. Scott plaintiff received a verdict for $1,431.62. Defendant duly filed its motion for judgment in accordance with its motion for a directed verdict, or in the alternative for a new trial. According to the order entered by the clerk the trial judge on August 3, 1955, overruled that part of the motion asking judgment in accordance with defendant's motion for a directed verdict and also that part of the motion asking in the alternative for a new trial. On August 12, 1955, defendant appealed to this court from the judgment entered on August 3, for plaintiff for $1,431.62. The defendant was unable to prepare its transcript within 90 days and was granted an addition 90 days to file it. Defendant still being unable to file the transcript within six months, this court granted it an additional 90 days. Within that time and on March 2, 1956, defendant filed with the trial court an application for a nunc pro tunc order as described hereinafter. On March 29, 1956, plaintiff filed its motion to strike that application. At a hearing held on April 6, 1955, the trial court sustained defendant's application and entered its order nunc pro tunc overruling defendant's motion for judgment in accordance with its motion for directed verdict and sustaining defendant's motion for a new trial on the ground that the verdict and the judgment is against the law and the evidence.

On April 16, 1956, defendant withdrew its notice of appeal, and plaintiff appealed from the judgment of the court granting a new trial nunc pro tunc on the 6th day of April 1956.

The transcript of the record reveals that the original motion titled, 'Defendant's motion for judgment in accordance with its motion for a directed verdict or in the alternative for a new trial', consisted of four pages. On page one was written 'Filed May 7, 1955, Dan Sullivan.' Also, at another place on the margin of that page appeared the following: 'Overruled Michael J. Scott, Judge.' On page two thereof there appeared this notation: 'Motion for new trial sustained on ground being against the law and the evidence. Michael J. Scott, Judge.' This notation appeared on the margin of that part of page two where the motion asked in the alternative for a new trial.

There was no evidence offered at the hearing. Defendant's counsel in its brief explains that the clerk merely looked at the first page of the motion and mistakenly thought that the Judge had overruled the entire motion, thereby overlooking the page two notation sustaining the alternative portion of the motion and granting a new trial. Defendant also states that this clerical error was not discovered until the court reporter saw it while glancing through the file prior to preparing the transcript on appeal, and that prior to this discovery plaintiff and defendant mistakenly thought the clerk's entry was the true and full order of the court. Defendant also says in its brief that when the matter was called to Judge Scott's attention he remembered his actual order granting the new trial. However, we disregard all of these statements by defendant. They are not supported anywhere in the transcript, and are mere ipse dixit of counsel concerning matters not conceded by its adversary.

Plaintiff contends that the circuit court was without authority to sustain defendant's motion for a new trial nunc pro tunc made more than 30 days after the record showed that motion had been overruled.

We cannot agree with plaintiff's contention. It has long been established that every court has the inherent power to correct errors in its records resulting from clerical mistakes or misprisions of its clerk. State ex rel. Holtkamp v. Hartmann, en banc, 330 Mo. 386, 51 S.W.2d 22; E. C. Robinson Lumber Co. v. Hazel, Mo.App., 271 S.W.2d 610.

Where the original judgment entry is not the judgment of the court, the trial court at any time can properly enter the judgment actually rendered. McCarthy v. Eidson, en banc, Mo.Sup., 262 S.W.2d 52, 54; Abbott v. Seamon, Mo.App., 229 S.W.2d 695, 699; 49 C.J.S., Judgments, Sec. 237, page 449. This is so even...