Gamble v. Daugherty

• Decision Date: 30 April 1880
• Citation: 71 Mo. 599
• Parties: GAMBLE v. DAUGHERTY, Plaintiff in Error.
• Court: Missouri Supreme Court

71 Mo. 599

GAMBLE

v.DAUGHERTY, Plaintiff in Error.

Supreme Court of Missouri.

April Term, 1880.

Error to Carroll Circuit Court.--HON. E. J. BROADDUS, Judge.

REVERSED.

This was an action of ejectment in the ordinary form, brought by Martha J. Gamble and Permelia J. Leonard and Thomas Leonard, her husband. Before the trial, Martha J. Gamble died. No steps were taken to bring in her successors in interest. At the April term, 1874, and on the 23rd of that month, the cause was tried, and the minute book of the clerk for that term shows the following entry:

“ Gamble et al., v. Daugherty. Judgment for surviving plaintiff for lands sued for, and one cent damages. Writ of possession. Mistake in deed corrected.”

And on the record book for that term appeared the following entry:

“ Martha J. Gamble, plaintiff, v. George Daugherty.”

Following this was a blank space, as though left to insert an entry showing a trial, judgment or some action of the court in the premises; but this blank space was never filled. The present writ of error bears date April 3rd, 1877.

On the 12th of April, 1877, the defendant filed his motion, suggesting to the court that a final judgment had been entered against him in the cause, but that the clerk had failed to enter the same upon record; that defendant felt himself aggrieved by said judgment, and desired to take the cause to the Supreme Court for review, and to that end had obtained a writ of error, and praying that an entry of the judgment as rendered might then be made as of the 23d of April, 1874. This motion coming on to be heard at the July term, 1877, the defendant, in support of it, read in evidence the pleadings in the case and the foregoing entries in the minute and record books, and exhibited the blank space in the record book. He also offered parol evidence to show what deed was referred to in the entry on the minute book and what the mistake intended to be corrected was; but, on plaintiff's objection, this evidence was excluded. The court thereupon overruled so much of defendant's motion as sought to have the judgment specify what deed and what mistake were intended to be corrected, and sustained the remainder of the motion, and caused the following nunc pro tunc entry to be made, (omitting the title of the cause):

Now, at this day, come the parties to the above entitled cause, and neither party requiring a jury, the same is submitted to the court for trial, whereupon the court, having heard all the evidence offered on both sides, doth find the issues for the surviving plaintiffs. It is, therefore, considered by the court that the said surviving plaintiffs have and recover from the defendant the possession of the land sued for, to wit: The west half of the northeast quarter of section No. 22, in township No. 53, of range No. 22, in Carroll county, Missouri, together with one cent damages for the unlawful detention thereof, and that said surviving plaintiffs have execution thereof, by writ of possession; and it is further ordered and adjudged by the court that the mistake in deed be, and the same is, hereby corrected, and the residue of said...