Freeman v. Joplin Water Works Co.

• Decision Date: 25 October 1941
• Docket Number: 36108,37502
• Citation: 154 S.W.2d 744
• Parties: FREEMAN v. JOPLIN WATER WORKS CO. (two cases)
• Court: Missouri Supreme Court

154 S.W.2d 744

FREEMAN v. JOPLIN WATER WORKS CO. (two cases)

Nos. 36108, 37502

Supreme Court of Missouri, Second Division

October 25, 1941

Foulke & Foulke and Kelsey Norman, all of Joplin, for appellant.

Robert E. Seiler and Scott & Scott, all of Joplin, for respondent.

OPINION

BOHLING, Commissioner.

J. W Freeman instituted this action in 1935, seeking a judgment for $ 19,000 against the Joplin Water Works Company. He appealed from a judgement for the defendant.

At the threshold of the case we are met by defendant's contention that plaintiff's motion for new trial was not timely. The verdict and judgment were entered on February 18 1938. On October 14, 1940, approximately two years and eight months thereafter, plaintiff filed a motion to correct the record, nunc pro tunc, to show the filing of his motion for new trial on February 19, 1938, instead of on February 24 1938. This motion, after hearing, was overruled October 28, 1940, and plaintiff appealed from said order. Plaintiff does not contend the motion for new trial was timely filed if the record nisi stands. § 1171, R.S.1939, Mo.St.Ann. p. 1272, § 1005; Long v. Hawkins, 178 Mo. 103, 107, 77 S.W. 77, 78; State ex rel. v. McGowan, 62 Mo.App. 625, 627.

The files in the main case had been sent to the court reporter to prepare the bill of exceptions. The bill of exceptions was approved by the trial judge and filed on October 9, 1939. The court reporter moved out of the state; and at the hearing on plaintiff's motion, the files were not available although efforts had been made to obtain their return. Consult, with respect to lost etc. papers, § 3639, R.S.1939 Mo.St.Ann. p. 6715, § 3249; Becher v. Deuser, 169 Mo. 159, 165, 69 S.W. 363, 365; Campbell v. Greer, 197 Mo. 463, 465, 95 S.W. 226; State v. Gould, Mo.Sup., 246 S.W. 547, 548[2]. The judge's minutes showed that plaintiff's motion for new trial was filed on February 24, 1938. Aside from the oral testimony, there was no evidence contra. The transcript of the record proper and the bill of exceptions showed the filing and the overruling of said motion for new trial on February 24, 1938. Only parol evidence was offered by plaintiff on the motion for nunc pro tunc relief. It was given by one of plaintiff's counsel and the clerk of the court and was to the effect plaintiff's motion for new trial had been lodged with the clerk of the court on February 19, 1938. Plaintiff says nunc pro tunc relief should have issued upon this oral testimony, citing St. Louis Law Printing Co. v. Aufderheide, 226 Mo.App. 680, 684, 45 S.W.2d 543, 546 and cases there cited. In the face of an adverse finding this does not necessarily follow even in proceedings involving an ordinary disputed factual issue. Dempsey v. Horton, 337 Mo. 379, 384, 84 S.W.2d 621, 623[2-4]. This is not an ordinary proceeding. The trial judge may have had information concerning the subject matter. Court records import verity. Kansas City v. Mastin, 169 Mo. 80, 89(II), 68 S.W. 1037, 1038(2). We early said: 'But in this state it is not admissible to make a nunc pro tunc entry based upon any amount of oral testimony, nor upon the memory of the judge. Such entries can only be made 'upon evidence furnished by the papers and files in the cause, or something of record, or in the minute book or judge's docket, as a basis to amend by.'' Becher v. Deuser, 169 Mo. 159, 164, 69 S.W. 363, 364; St. Francis Mill Co. v. Sugg, 142 Mo. 358,...