Haycraft v. Haycraft, 25171.

• Decision Date: 04 June 1940
• Docket Number: No. 25171.,25171.
• Citation: 141 S.W.2d 170
• Parties: HAYCRAFT v. HAYCRAFT.
• Court: Missouri Court of Appeals

141 S.W.2d 170

HAYCRAFT v. HAYCRAFT.

No. 25171.

St. Louis Court of Appeals. Missouri.

June 4, 1940.

Appeal from Circuit Court, St. Charles County; Edgar B. Woolfolk, Judge.

"Not to be reported in State Reports."

Action by Ralph E. Haycraft against Lela H. Haycraft for divorce, wherein defendant filed motion to correct nunc pro tunc trial judge's minute entry in his docket. From a judgment sustaining defendant's motion for a nunc pro tunc order, the plaintiff appeals.

Reversed and remanded.

L. A. Robertson, of St. Louis, for appellant.

Emerson Baetz and Jacoby & Daly, all of Alton, Ill., for respondent.

BECKER, Judge.

In an action for divorce filed by plaintiff husband against the defendant wife, the court, after hearing the case and taking it under advisement, made the following minute entry in his docket as of October 26, 1937: "This cause having been under advisement and now the Court being advised of and concerning the matters and things at issue in the cause doth find the issues against the plaintiff and find that plff has not offended as charged in plaintiff's petition and is the innocent and injured party in the action. Judgment is ordered for Plaintiff and against Defendant."

The minute entry of the clerk of the court as of October 26, 1937, is as follows:

"Ralph E. Haycraft, Plf, v. Lela H. Haycraft, Deft. Divorce.

"This cause having been under advisement and now the Court being advised of and concerning the matters and things at issue in this case doth find the issues against the Plaintiff and finds that ____ has not offended as charged in Plaintiff's petition and is the innocent and injured party in the action. Judgment is ordered for ____ and against ____."

Thereafter, on February 15, 1938, the defendant wife filed her motion to correct nunc pro tunc the judge's minute entry in his docket to read: "This cause having been under advisement and now the Court being advised of and concerning the matters and things at issue in the cause doth find the issues against the plaintiff, and doth find the defendant has not offended as charged in plaintiff's petition, and is the innocent and injured party in the action. Judgment is ordered for the defendant and against the plaintiff."

And to correct nunc pro tunc the said minute entry of the clerk of said court so that it should read as follows:

"Ralph E. Haycraft, plf, vs. Lela H. Haycraft, Deft. Divorce.

"This cause having been under advisement and now the Court being advised of and concerning the matters and things at issue in this cause doth find the issues against the plaintiff, and finds that defendant has not offended as charged in plaintiff's petition and is the innocent and injured party in the action. Judgment is ordered for Defendant and against plaintiff."

And to correct nunc pro tunc the record of the case in the court in the same manner.

Plaintiff husband filed a motion to strike defendant's motion for a nunc pro tunc order from the file on the ground that said motion sought to amend or alter the judgment of the court rendered on October 26, 1937, when in fact defendant's motion was filed at a term subsequent to the term at which said judgment and entry were made and entered. This motion of plaintiff to strike was overruled.

On June 20, 1938, the court heard defendant's motion for a nunc pro tunc order and in all respects sustained the same. In due course plaintiff husband appealed.

"A nunc pro tunc judgment, at a subsequent term, can only be made upon evidence furnished by the papers and files in the cause, or something of record, or in the clerk's minute book, or on the judge's docket. In other words, a nunc pro tunc entry can only be employed to correct a clerical mistake or misprision of the clerk. It can never correct a mistake or oversight of the judge, nor be used to correct judicial errors, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the judge intended to render. Freem.Judm. (3d Ed.) § 69n; Ross v. Ross, 83 Mo. 100; [Exchange Nat.] Bank v. Allen, 68 Mo. 474; State v. Jeffors, 64 Mo. 376; Belkin v. Rhodes, 76 Mo. [643] 652; Wooldridge v. Quinn, 70 Mo. [370] 371; Gamble v. Daugherty, 71 Mo. 599; [Missouri, K. & E.] Railroad [Co.] v. Holschlag, 144 Mo. [253] loc. cit. 256, 45 S.W. 1101, 66 Am.St.Rep. 417; Young v. Young , 65 S.W. 1016 ." Burnside v. Wand, 170 Mo. 531, 543, 71 S.W. 337, 339, 62 L.R.A. 427.

"It is not shown by this record, and it is not pretended by the respondents Hartmann and Hall here, that the nunc pro tunc entry is a correction of any mistake by the clerk. The clerk entered the judgment in accordance with the minute made and signed by the judge. The only excuse for nunc pro tunc entry here...