Farrell v. DeClue

Decision Date19 February 1963
Docket NumberNos. 31234,31259,s. 31234
Citation365 S.W.2d 68
PartiesAnna FARRELL, Plaintiff-Appellant, v. Lawrence DeCLUE and Tex-Flame Gas Corporation, Defendants-Respondents.
CourtMissouri Court of Appeals

Roberts & Roberts, Raymond R. Roberts, Farmington, for plaintiff-appellant.

Smith & Colson, David L. Colson, Farmington, for defendants-respondents.

DOERNER, Commissioner.

These two appeals were taken by the plaintiff, in turn, from an order which by its terms granted defendants a new trial, and from a subsequent order amending the prior order. At its inception plaintiff's action was a commonplace suit for damages claimed to have resulted from a collision between two motor vehicles. By the time the matter reached this court the issues ordinarily present in litigation of that character had virtually disappeared in an entanglement which may be aptly described as a legal Gordian knot.

Plaintiff's petition was filed on November 24, 1961. Summons issued and was duly served on both defendants on November 25, 1961, and the sheriff's return was filed the next day. Neither of the defendants appeared or filed a responsive pleading within the time prescribed by Civil Rule 55.27, V.A.M.R. On January 10, 1962, the plaintiff's case was presented to the court, sitting without a jury, and a judgment was rendered in favor of plaintiff and against both defendants for $9,000, and costs. Thereafter, on January 24, 1962, defendants filed a joint motion titled, 'Joint Motion of Defendant Lawrence DeClue and Defendant Texflame Gas Corporation to set Aside the Verdict and Judgment Entered Thereon and to Grant Each Defendant a New Trial.' Therein they moved the court to set aside the default judgment and grant them a new trial for the reasons that: the judgment was contrary to law; the judgment was against the weight of the evidence; the verdict was excessive; that there had been no lack of diligence on their part in permitting the default judgment to be rendered and that their failure to answer and defend the suit had not resulted from any negligence on their part, in that the summons and copies of the petition were delivered by them on or about November 28, 1961, to Byron Upchurch, the insurance agent of the Phoenix Insurance Company of Hartford, their insurance carrier; that on the same day Upchurch mailed the papers in Farmington to the St. Louis office of the insurance company, which failed to receive them; that defendants did not know why the letter bearing the copies of the petition and the summons was not received by the insurance company but felt that there was some mistake on the part of the United States Postal Service; that had there been no mistake each of the defendants would have answered within the prescribed time; and that each of the defendants had a valid defense to plaintiff's claim, in that they denied every allegation contained in plaintiff's petition and alleged that if plaintiff was injured it was due to the negligence of plaintiff's husband, Walter J. Farrell, the driver of the automobile in which plaintiff was riding, in certain specified respects, which they set forth. Defendants' motion was not verified, and no affidavits were filed to support it.

All that the transcript shows is that 'Thereafter, on March 10, 1962, said Motion For New Trial was argued by counsel for the respective parties, and the following Order was entered of record, to-wit:


"Now at this day defendants' motion for new trial taken up, considered and sustained and it is ordered by the Court that defendants be granted a new trial in this cause. Defendant granted ten days to file responsive pleadings."

Two days later, on March 12, plaintiff filed her notice of appeal from that order. On the succeeding day, March 13, plaintiff filed in the trial court what was titled 'Statement of Error in Granting New Trial; Notice for Respondents to File Original Brief,' in which she pointed out that in its order the court had not specified of record the ground or grounds on which the new trial was granted, and called upon the defendants to file the original brief in this court, pursuant to Civil Rule 83.06(b).

The next link in this chain of events was the entry of record by the court on March 15, 1962, of an order which was as follows:

"It is hereby ordered non pro tunc that the order of March 10th, 1962 sustaining defendants' motion for new trial be amended and corrected to read as follows:


"Now on this day defendants Motion for New Trial heretofore heard by the Court, the Court now being fully advised in the premises, said Motion for New Trial is by the Court sustained, for the following reasons:

"1. The judgment of the Court is contrary to law.

"2. The judgment of the Court is against the weight of the evidence.

"3. The verdict is excessive.

"4. That the original judgment was granted by default to the plaintiff and the Court now finds neither defendant to have been negligent in failing to answer."

Thereafter, on March 22, 1962, plaintiff, limiting her appearance to the purpose, filed a motion to strike and set aside the so-called nunc pro tunc order of March 15 on the grounds that "The Order of the Court entered on March 15, 1962, is not nunc pro tunc, correcting a clerical error or misprision to make the record reflect the Court's Order of March 10, 1962, but it changes and amends the Order of March 10, 1962, to a different Order than was entered by the Court." This motion was taken up and considered by the court, and overruled on April 6, 1962, whereupon plaintiff duly appealed from the order overruling its motion to set aside the nunc pro tunc order. In the interim, on March 20, 1962, defendants had filed heir joint answer.

Prior to a consideration of the merits of the appeals we must first dispose of a preliminary matter. Subsequent to the filing of a joint transcript covering both appeals plaintiff moved in this court that the two appeals be consolidated. We overruled plaintiff's motion but on our own initiative ordered that the appeals be jointly briefed and heard together. Plaintiff filed the original brief covering both appeals, and defendants answered with theirs. Under cover of her reply brief plaintiff filed a motion to affirm the original judgment of January 10, 1962, for the reason that defendants had failed to file the original brief in the first appeal, as required by Civil Rule 83.06(b). A number of reasons might be stated why the motion should be overruled, but one will suffice. It is apparent that our order directing that the two appeals be briefed and argued together created some doubt and confusion in the minds of both parties as to which should then file the original brief. Plaintiff appears to have resolved the doubt by filing the first brief, as it would have been required to do in the second appeal, absent any consolidation, and relying thereon defendants filed an answering brief in the usual manner of a respondent. Plaintiff did not question this procedure until the time for filing its reply brief. Under these circumstances it would obviously be a miscarriage of justice to grant plaintiff's motion, and in the exercise of the discretion vested in us by Civil Rule 83.09, if for no other reason, plaintiff's motion should be overruled.

As a further prelude, and by way of demarcating our problem it is in order to point out that this is not a case in which the trial court refused to set aside a default judgment. Nor is it one in which the defendants' motion partook of the nature of a writ of error coram nobis, or a proceeding for a review because of errors patent on the record. Different rules, not applicable here, apply to such situations. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132; Kallash v. Kuelker, Mo.App., 347 S.W.2d 467; Owens v. Owens, Mo.App., 280 S.W.2d 867.

With these preliminary matters disposed of we turn to the numerous questions presented. We shall endeavor to cut through to the decisive issue which forms the core of this knotty problem, rather than undertake to untangle it strand by strand. That issue, in our opinion, is whether the court's order of March 10 was an 'order granting a new trial' within the meaning of Section 512.020 RSMo 1959, V.A.M.S., which specifies who may appeal; or whether it was merely an order setting aside the default judgment. As we shall seek to demonstrate, diametrically opposite results obtain, depending upon the conclusion reached. We observe, in passing, that while no question has been raised by either of the parties as to the nature and character of that order, it is our duty to make such inquiry sua sponte inasmuch as our jurisdiction to entertain these appeals is involved. Dotson v. E. W. Bacharach, Inc., Mo., 325 S.W.2d 737; Deeds v. Foster, Mo., 235 S.W.2d 262.

Judged solely by the language employed by the court, its order of March 10 would appear to be an 'order granting a new trial' within the meaning of Section 512.020, and therefore one from which an appeal will lie. The entry reads that the court sustained defendants' '* * * motion for new trial * * *' and ordered that 'defendants be granted a new trial in this cause. * * *' If that order was in fact one granting defendants a new trial then we would be constrained to hold that the court erred in making it. This conclusion would follow for these reasons: No grounds for the granting of a new trial were specified in the order of March 10. Nor were such grounds supplied by the so-called nunc pro tunc order of March 15, because it was not a valid nunc pro tunc entry. A nunc pro tunc order can only be employed to correct a clerical mistake or a misprision of the clerk, upon proper evidence. It can never be invoked, as was attempted here, to correct a judicial mistake or oversight, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the court intended to return. Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839, 126 A.L.R. 949; ...

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20 cases
  • Kollmeyer v. Willis
    • United States
    • Missouri Court of Appeals
    • 20 de setembro de 1966
    ...the trial court erred in setting aside the default judgment. Sec. 512.020; Farrell v. DeClue, Mo.App., 382 S.W.2d 462. See Farrell v. DeClue, Mo.App., 365 S.W.2d 68. Before proceeding to a consideration of the merits of the appeal, certain preliminary observations would seem to be appropria......
  • City of Ferguson v. Nelson
    • United States
    • Missouri Supreme Court
    • 10 de março de 1969
    ...final judgment in a case and thus was appealable; also that the nunc pro tunc proceedings were independent proceedings. In Farrell v. DeClue, Mo.App., 365 S.W.2d 68, an appeal from a nunc pro tunc order was sustained and the order 'held for naught,' l.c. 75. While we are unwilling to hold, ......
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    ...rendered was not the judgment the judge intended to make. City of Ferguson v. Nelson, Mo., 438 S.W.2d 249, 253(3); Farrell v. DeClue, Mo.App., 365 S.W.2d 68, 72(3); Heaven v. Heaven, Mo.App., 363 S.W.2d 33, 37--38; 1 Black on Judgments, 2d Ed., § 158, pp. 230--232. When a judgment is in fac......
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    ...summarize the law in this area. Maverick also cites Jackson v. Wheeler, 567 S.W.2d 363, 368 (Mo.App.1978) and Farrell v. DeClue, 365 S.W.2d 68, 74[6, 7] (Mo.App.1963), because they rely upon Bussiere or Stanton for the proposition that no appeal lies from a final order setting aside a defau......
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