Howell v. Sherwood

Decision Date07 May 1912
PartiesHOWELL et al. v. SHERWOOD.
CourtMissouri Supreme Court

Rev. St. 1909, § 2397, provides that the judgment in ejectment shall be for recovery of the premises, the damages assessed, and accrued rents and profits at the rate found by the jury from the rendition of verdict until possession is delivered to plaintiff. The verdict in ejectment found the issues for plaintiff, including that of his right to recover, assessed his damages at $75, and the monthly rental at a certain sum until possession was given, but the judgment merely ordered that plaintiff could recover the sum of $75 as "debt and damages," and the sum named in the verdict until possession is given. Held, that the judgment was not responsive to the pleadings and verdict in not awarding possession.

26. JUDGMENT (§ 1)—DEFINITION.

A judgment is the sentence of the law upon the record.

27. APPEAL AND ERROR (§ 1170)—REVERSAL INCONSEQUENTIAL ERROR.

Rev. St. 1909, § 1851, provides that after final judgment the court may in furtherance of justice amend pleadings, process, entries, etc., by adding or striking out the name of the parties, or correcting a mistake therein, or by rectifying any defects in form, and the judgment shall not be reversed therefor. Section 2119 forbids a judgment to be set aside for any mistake in the name of a party where the correct name is properly alleged in any of the pleadings. Held, that the fact that the judgment entry bore the title of the cause as it was originally, and not according to an order substituting parties, was cured by the statutes and was not ground for reversal.

28. APPEAL AND ERROR (§ 1176)—DISPOSITION —REMAND.

While under Rev. St. 1909, § 2120, providing that defects enumerated in the preceding section and all others of like nature, not against the justice of the matter in suit, and not altering the issues, shall be amended by the appellate court, the Supreme Court could amend a judgment in ejectment by requiring it to conform to the pleadings and verdict by describing the land and awarding possession to plaintiff, the better practice is to remand the cause with directions to amend the judgment in that respect and enter a proper judgment nunc pro tunc.

Woodson and Graves, JJ., dissenting.

In Banc. Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by H. E. Howell and others against Thomas A. Sherwood. From a judgment for plaintiffs, defendant appeals. Reversed and remanded with directions to amend and enter judgment as directed.

Sherwood & Young, T.J. Delaney, Geo. B. Webster, and H. C. Young, for appellant. Geo. Pepperdine and Patterson & Patterson, for respondents.

LAMM, J.

Ejectment. The squabble is over a triangular piece of somewhat uneven land of, say, 10 acres lying for many years (if not now) mostly in a state of nature in the outskirts of Springfield. In 1897 defendant took possession. In 1904 plaintiff H. E. Howell and his then coplaintiff, William G. Howell, sued defendant and his then tenant, Steve Blakey, for possession. In 1905, at a trial to the court without a jury, the then plaintiffs had judgment. In 1908 that judgment was reversed on appeal here and the cause remanded generally. 213 Mo. 565, 112 S. W. 50. Subsequently Blakey and William G. Howell died. Prior to Howell's death he parted with his interest (an undivided half), and plaintiffs, the Pattersons and Edmonson, acquired it. By due and timely orders of court they were substituted instead of W. G. Howell, deceased, and now litigate as coplaintiffs with H. E. Howell. Thereat an amended petition and answer were filed. In 1909 plaintiffs on those amended pleadings again had judgment, this time on a trial to a jury. By the inadvertent misprision of the clerk the style of the case on the record seems to run on as it did at the start.

The record is long; the facts tangled; the exceptions many. Now and then "in medias res" is a useful motto. Taking heed thereof, it is as well to go at once into the midst of things and let sufficient of the...

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    • United States
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    ...651, 137 S.W. 1010; Green v. Term. Railroad Assn., 135 S.W. (2d) 652; Schaefer v. Frazier-Davis Co., 125 S.W. (2d) 897; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810; Haycraft v. Grigsby, 88 Mo. App. 354; Calcaterra v. Iovaldi, 123 Mo. App. 347, 100 S.W. 675; Lock v. Chi., etc., R. Co., 281......
  • Tillman v. Hutcherson, 37254.
    • United States
    • Missouri Supreme Court
    • September 25, 1941
    ... ... 99, 106-7, 216 S.W. 317, 318-9(3); ...         Collins v. Andriano, 264 Mo. 475, 480, 175 S.W. 194, 195; ...         Howell 480, 175 S.W. 194, 195; ...         Howell v. Sherwood ... ...
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    • February 11, 1946
    ... ... 297; Holt v. Co., 140 S.W. (2d) 59; 31 Am. Jur., p. 470, sec. 134; 35 C.J., p. 96, sec. 154; Pewabic Mining Co. v. Mason, 145 U.S. 349; Howell v. Sherwood, 242 Mo. 513, 147 S.W. 810; Jones v. Peterson, 335 Mo. 242, 72 S.W. (2d) 76; Noland v. Barrett, 26 S.W. 692, 122 Mo. 181; Jones v ... ...
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    • Missouri Supreme Court
    • May 20, 1912
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