Evans v. Fisher

• Decision Date: 31 May 1887
• Parties: JOHN S. EVANS, Respondent, v. JOHN J. FISHER, Appellant.
• Court: Missouri Court of Appeals

26 Mo.App. 541

JOHN S. EVANS, Respondent, v. JOHN J. FISHER, Appellant.

Court of Appeals of Missouri, St. Louis.

May 31, 1887

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded with directions.

D. D FASSETT, for the appellant: The court had the power after the term to amend the record. Gibson v. Chouteau, 45 Mo 171; Groner v. Smith, 49 Mo. 323; Turner v Christy, 50 Mo. 145; Henly v. Dewes, 1 Mo. 16; DeKalb v. Hixon, 44 Mo. 341; Massey v. Sott, 49 Mo. 278; Gillett v. Bank, 56 Mo. 306; Levison v. Sevan, 33 Cal. 480; Smith v. Kennedy, 63 Ala. 333; Bank v. Wister, 3 Pet. 431.

SMITH & HARRISON, for the respondent: There is nothing to show that any clerical error was committed in entering the judgment in the court below. There is nothing in the record, and no minutes or memoranda of the judge or clerk, to show that any different judgment was, in fact, rendered from that which was, in fact, entered. Ross v. Ross, 83 Mo. 100; The State v. Primm, 61 Mo. 166; Freeman on Judgments (3 Ed.) sect. 70, pp. 57, 59; Jones v. Hart, 60 Mo. 351, 355, 356; Dunn v. Raley, 58 Mo. 184; The State v. Jeffors, 64 Mo. 376; Wooldridge v. Quinn, 70 Mo. 370; Belkin v. Rhodes, 76 Mo. 643, 652.

OPINION

THOMPSON J.

This appeal is prosecuted from an order overruling a motion to amend the entry of a judgment after the close of the term at which it was rendered. The judgment was rendered upon a partnership settlement, in which the court, confirming the report of a referee, found a certain amount due to the plaintiff on the partnership account, and a certain larger amount due to the defendant on certain counter-claims, and rendered a judgment in favor of the defendant for the excess of the amount due from the plaintiff to him over that due from him to the plaintiff. In this judgment, nothing is said about the rate of interest which it shall carry.

In support of the motion, the defendant put in evidence, among other things, a portion of the referee's report, from which it appeared that the referee had allowed interest upon the defendant's counter-claim down to October 1, 1883, which seems to have been the date to which the account was carried, which interest was included in the referee's findings and formed a part of the general balance adjudged in favor of the defendant, by the report of the referee and the judgment of the court confirming the same. The judgment recites, among other things, that " the said report of the referee is in all things confirmed and established; and, thereupon, the court, proceeding, on motion of the defendant's counsel, to enter judgment herein, according to the findings and conclusions of the referee upon the questions of law and fact, doth order, adjudge," etc. Then follows a recital of certain facts, and after that, the judgment of the court, in which the amount found to be due from the defendant to the plaintiff on the partnership settlement is applied in reduction of the larger amount found to be due from the plaintiff to the defendant on the defendant's counter-claims; and ending with the recital that " said J. J. Fisher (the defendant) have and recover from the plaintiff, J. S. Evans, the remainder due thereon, to-wit: The sum of $2,346.02, together with his costs and charges herein expended, and have execution therefor," etc.

The object of the present motion is to have the judgment thus rendered corrected, so as to allow interest at the rate of ten per cent. per annum from October 1, 1883, the date to which the referee adjusted the mutual accounts and computed the interest, to the date of the judgment; and, also, so as to have the judgment corrected so as to show that it bears interest at the rate of ten per cent. per annum. The counter-claims, on which the balance was adjudged in favor of the defendant, consisted of two promissory notes, each of which, as recited in the answer, bore interest at the rate of ten per cent. per annum after maturity; and the extract from the referee's report indicates that he computed the interest at ten per cent. per annum, according to the tenor of the notes. If this is so, the judgment, which confirmed the report of the referee, as a matter of law, bears interest at the rate of ten per cent. per annum. Rev. Stat., sect. 2725.

I. The rate of interest which a judgment shall bear, is a quality which the statute ascribes to the judgment, and it is not a necessary part of the judgment entry; and where it is not shown by the judgment entry, it is the duty of the clerk to ascertain from the record the interest which the judgment shall bear, and to issue execution accordingly; and where he refuses to perform this duty, the circuit court can direct him so to do on motion, or the defendant can compel him to do so by mandamus. The State ex rel. v. Vogel, 14 Mo.App. 187.

But while a statement of the rate of interest which the judgment is to bear is not necessary to the legal completeness of the judgment in this respect, and while, where the judgment is silent as to the rate of interest, it is the duty of the clerk to ascertain the rate of interest from the record, and to issue execution accordingly; yet, it does not follow from this that the party in whose favor the judgment is rendered is not entitled, where the judgment bears a different rate of interest from the rate prescribed by the general law, to have the entry of judgment so reformed as to show the rate which it does bear. Although it may not be necessary, yet it certainly is proper, that in such a case the judgment should show the special rate of interest.

A judgment is a record contract. It is to the interest, not only of the litigants themselves, but of all persons who are likely to be affected thereby, that all the terms of such contract should appear by the entry itself. The enforcement of the claim, by execution, is not the only object for which the entry is made. It answers many other purposes under the statute, and it will not admit of question that cases may arise where the omission of the extra rate of interest which a judgment bears, not by force of the statute alone, but by force of the statute in connection with the special matter appearing in the other parts of the record of the cause will, as between the judgment claimant and third persons, lead to very serious complications. The person in whose favor the judgment is rendered may desire to make it the foundation of an action in another jurisdiction; if so, he ought not to be put to the inconvenience and hazard of proving, by evidence outside of the judgment entry, the special rate of interest which it bears. Our statute provides that a judgment in this city shall be a lien on real estate only from the date it is entered in the abstract book. The theory of the statute is, that, for the purpose of ascertaining incumbrances of this kind, their extent and respective priorities, persons shall look to the abstract book only. Laws 1881, p. 153. Persons are not expected to hunt up the record itself, much less to determine, at their own peril, from a careful analysis of a complicated record, consisting of claims and counter-claims, as the present one, whether the judgment in fact bears more than six per cent. interest. Our statute also provides that a transcript of a judgment may be filed in another county, and thereby become a judgment lien on the debtor's real estate. Is it supposed that any subsequent incumbrancer in such other county shall be required to look up the original record in all cases for the purpose of determining the extent of such lien? These are only a few instances of the complications likely to arise from denying to the judgment creditor the right, to which, in our opinion, he is clearly entitled, of having the record entry perfected...