Davison v. Davison

• Decision Date: 10 December 1907
• Parties: DAVISON et al. v. DAVISON.
• Court: Missouri Supreme Court

106 S.W. 1

207 Mo. 702

DAVISON et al. v. DAVISON.

Supreme Court of Missouri, Division No. 2.

December 10, 1907.

1. DOWER — AMENDMENT — DECREE — MISTAKE.

Where a decree assigning dower limits the estate to the widow's life or widowhood, the limitation to her widowhood is void as unauthorized by law, and cannot be enforced, and therefore the decree needs no correction in that regard.

2. JUDGMENT — CORRECTION AFTER TERM — ERRORS OF LAW.

A decree not appealed from, assigning dower and homestead to a widow, was entered by agreement of parties on report of commissioners, but by mistake of the clerk was made to read that the widow should hold the dower and homestead "during her natural life or widowhood." By a subsequent nunc pro tunc order, four terms after the decree was entered, it was corrected to read that "the homestead shall vest in her during her natural life or widowhood, and the dower shall be vested in her during her natural life." Held, that no appeal by the widow would lie from such order amending the judgment on the ground that she was entitled to dower in the homestead, since the first decree could not be corrected after the term as to errors of law.

3. SAME — CLERICAL ERRORS.

The court may at any time correct clerical errors by the minutes of the judge or some record in the cause showing clearly that such a clerical error was committed, and it may correct a judgment entry so as to make the judgment that which the court in fact rendered.

Appeal from Circuit Court, Jasper County.

Action to assign dower and homestead to a widow, by John L. Davison and others against Florence M. Davison. From a nunc pro tunc order amending the decree entered, defendant appeals. Appeal dismissed.

This cause is now before this court upon appeal by the defendant from a judgment admeasuring to her homestead and dower in certain real estate of which her husband died seised. We deem it unnecessary to reproduce the pleadings in this cause, therefore will be content with a mere reference to them indicating their nature and character.

The respondents, as the children and legatees of John Q. Davison, deceased, commenced an action in the circuit court of Jasper county, Mo., on the 2d day of June, 1902, against the appellant to assign and admeasure to appellant her dower in the real estate of her deceased husband, the said John Q. Davison. In her answer the appellant pleaded that a certain portion of said real estate was the homestead of her deceased husband and herself prior to his death, and prayed that the same, as well as her dower, be set off to her. By an interlocutory decree commissioners were appointed and directed to set off homestead and dower to appellant. The commissioners found the value of the real estate of the deceased to be $6,885, and set off a tract to appellant of the value of $1,500 for her homestead, and another tract of the value of $795 for her dower; the value of the homestead and dower tracts being equal to one-third the value of all the real estate of the deceased. The report of the commissioners neither affirmed nor denied the right of appellant to dower in the homestead tract. The report of the commissioners was approved and confirmed by agreement of the parties; but in writing up the judgment the clerk concluded as follows, to wit: "It is therefore considered, adjudged, and decreed by the court that the said homestead and dower interest heretofore set off by the commissioners herein to Florence M. Davison, widow of John Q. Davison, deceased, be and the same is vested in the said Florence M. Davison during her natural life or widowhood."

The interlocutory decree made in this cause was at the November term, 1902. At the succeeding term, being the March term, 1903, said commissioners made their report to the court, which was as follows: "Having first taken and subscribed the oath required by law, which is herewith filed, to faithfully discharge our duties and honestly and impartially execute the trust imposed in us, respectively, we proceeded to the land and other real estate of the deceased, situated in Jasper county, Missouri, and described as follows, to wit (here follows description of the lands of the deceased, including the lands described in paragraph four of this stipulation), and all of which real estate above described belonging to said deceased at the time of his death, we find of the total value of $6,885, out of which we set off to the defendant for her homestead all of the interest of the deceased (being a five-seventh interest) in the 10 acres, the southwest quarter of the southeast quarter of the northeast quarter of section 10, township 28, range 3; and for the remaining two-seventh interest, belonging in fee to the plaintiffs, Orville B. Davison and Mary J. Keener, we set off four acres therefrom off of the west side thereof, and the remaining six acres off of the east side of said 10-acre tract, on which is situate the late residence of the deceased, we set off to the defendant, Florence M. Davison, as her homestead, valued by us at $1,500, for and during her natural life...