Jones v. Hart

• Decision Date: 31 May 1875
• Citation: 60 Mo. 351
• Parties: BENJAMIN F. JONES, Defendant in Error, v. RICHARD HART, Plaintiff in Error.
• Court: Missouri Supreme Court

60 Mo. 351

BENJAMIN F. JONES, Defendant in Error,

v.RICHARD HART, Plaintiff in Error.

Supreme Court of Missouri.

May Term, 1875.

Error to DeKalb Circuit Court.

M. A. Low, for Plaintiff in Error.

I. The judgment, as originally entered, was erroneous, (Kritzer vs. Smith, 21 Mo., 296.)

II. The minutes of the court do not show that any judgment was ever ordered on the verdict.

III. The failure of a court to act, or its incorrect action, can never authorize a nunc pro tunc entry. If no judgment is rendered, or if an imperfect one is rendered, the court has no power to remedy any of these errors or omissions by treating them as clerical misprisions.

In all cases in which such an entry can be made, the record must show the facts authorizing it; and this power should be exercised with great caution. (Hyde vs. Curling, 10 Mo., 359; Gibson vs. Chouteau, 50 Mo., 85; Groner vs. Smith, 49 Mo., 318; Gray vs. Brignadello, 1 Wall., 627; State vs. Fields, Peck [Tenn.], 140; Powell vs. Commonwealth, 11 Gratt., 822.)

Such entries cannot be made from outside evidence or from facts existing alone in the breast of the court, after the end of the term at which final judgment was ordered. (Saxton vs. Smith, 50 Mo., 490; State vs. Smith, 1 Nott & M., [S. C.] 16.)

A general judgment cannot be amended nunc pro tunc at a succeeding term, so as to make it a special judgment; and hence a special judgment cannot be amended so as to make it general. (Green vs. Dodge, 3 Ohio, 486; see Pockman vs. Meatt, 49 Mo., 345.)

In this case the evidence on which the amendment was made is saved by the bill of exceptions, and there is nothing appearing of record to warrant the amendment. The court must have made it either without evidence, or from matters wholly within the breast of the court.

Wm. Henry, with Strongs & Hedenberg, for Defendant in Error.

I. To affirm the case the respondent relies upon the law as often declared by this court, and the uniform usage of the courts of record in this State. (DeKalb Co. vs. Hixon, 44 Mo., 341; Gibson vs. Chouteau's Heirs, 45 Mo., 171; Massey vs. Scott, 49 Mo., 278; Horstkotte vs. Menier, 50 Mo., 158; Mann vs. Schroer, 50 Mo., 306; Priest vs. McMaster, 52 Mo., 60; Jones vs. St. Joseph Fire & Mar. Ins. Co., 55 Mo., 342.)

II. In making the nunc pro tunc entry the court found the facts, and the whole matter having been before that court, this court will not disturb its finding.

HOUGH, Judge, delivered the opinion of the court.

At the October term, 1873, of the DeKalb Circuit Court, in an action by attachment, to which the defendant appeared, a verdict was rendered in favor of plaintiff, and against the defendant, for the sum of four thousand six hundred and thirty-four dollars and ninety one cents, on which verdict a judgment was entered of record, for the recovery of said sum, and directing the property attached to be sold; and if it should be found insufficient to satisfy the judgment, then directing a levy to be made upon other property of the defendant.

At the April term, 1874, the defendant filed a motion asking the court to correct the record, by expunging and setting aside the entry of final judgment entered on the judgment record, and for the reason that said final judgment of recovery in favor of plaintiff, and against defendant, was entered by the clerk without authority--no such judgment having been given by the court in said cause, as appears from the minutes of the court; 2nd, because the minutes of the court from which said judgment was made up, were insufficient to support said judgment, or any judgment against this defendant.

On the succeeding day the plaintiff filed the following motion:

“Comes now the plaintiff and shows to the court that in the entry of the judgment in the cause, at the October term, 1873, the clerk of this court, without authority of the court, and without authority of law, entered in said judgment the following words at or near the end of his judgment entry ‘and if the same shall not be sufficient, then the remainder shall be levied of the remaining real estate or goods and chattels of the defendant, and that execution issue in accordance with the terms of this decree;’ and plaintiff further shows that at said term, the order of this court upon the rendition of the verdict of the jury was that the judgment of the court be a general judgment for the amount of said verdict, and a general execution thereon, as provided by law; that said clerk failed to enter said order for execution on his record of his judgment; wherefore plaintiff asks the court to order the clerk of this court, now for then, to enter the proper judgment and order for execution, as ordered by the court aforesaid, and order for sale of attached property, as by the order of the court and the law provided.”

The two motions were, by consent, heard together, and the only evidence introduced, or offered, by either of the parties, was the entry made by the clerk in his minutes, together with the entry made by the judge in his docket, at the time of the rendition of the verdict.

The clerk's entry, after entering the cause, was “jury return their verdict for plaintiff and assess his damages at $4,634.91.” The entry made by the judge was “sub. to jury and verdict for $4,634.91.” Whereupon the court overruled the defendant's motion and sustained that of the plaintiff, and directed the clerk to enter of record, as of the October term, 1873, a general judgment as provided by law in such cases, to which rulings and action of the court, the defendant excepted and now brings the case here by writ of error.

It is quite clear that as the defendant appeared to the action, the original judgment in this case condemning the attached property to be sold was erroneous. Such was the decision of this court as to a similar judgment in the case of Kritzer vs. Smith, 21 Mo., 296, Scott, J., delivering the opinion of the court.

Nothing appears in the record which would warrant us in pronouncing it to be a mere clerical mistake, and subject to correction as such. Judgments are presumed to be rendered by the court and cannot be considered to be merely the act of the clerk, and all errors therein to be his misprisions. If it appeared from the record, the judge's docket, or the clerk's minutes, or any paper on file connected with the cause, that the court had rendered a general judgment and the clerk had entered up the judgment awarding special execution, now sought to be expunged by one party, and to be corrected, by the other, the action of the court in directing a nunc pro tunc entry, would be sustained; but it has been expressly decided by this court that such entries cannot be made “from outside evidence, or from facts existing alone in the breast of the judge, after the end of the term at which the final judgment was rendered.” (Saxton vs. Smith, 50 Mo., 490; Pockman vs. Meatt, 49 Mo., 348; Dunn vs. Raley, 58 Mo., 134; Fletcher vs. Coombs, 58 Mo., 430.) The court erred, therefore, in directing the entry of a general judgment, nunc pro tunc.

On the other hand we are of opinion, that the motion of the defendant to expunge the judgment, on the ground that there was no entry in the judge's docket, or in the clerk's minutes, showing that such a judgment, or that any judgment had been rendered, was properly overruled. The judgment was of record, the term had passed, and the record imported absolute verity and could not be assailed in that manner. It needed no such vouchers for its authenticity as docket entries and clerk's minutes. These might be sufficient to authorize the court to enter up a judgment which was really rendered, but had no record existence; but their absence cannot destroy the verity of a judgment, which is of record. Such a doctrine would imperil the existence and authority of all judicial records.

We have attentively considered, whether the action of the Circuit Court may not be upheld, by regarding the original judgment as having been set aside for irregularity, and the nunc pro tunc entry as an entry of judgment on the verdict. But an insuperable obstacle to this view of the case is, that the original judgment cannot be held to have been irregular. It was regularly rendered after the verdict, in strict accordance with the rules of law and the practice of the courts, and is wholly unobjectionable, except as to the relief afforded.

“An irregularity may be defined to be the want of adherence to some prescribed rule or mode of proceeding; and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time, or improper manner. * * A judgment by default is irregular when the defendant, in an action not bailable, has not been served with a copy of process, or there has been no declaration regularly delivered or filed, and notice thereof given to defendant; or when it is signed before defendant's appearance, or without entering a rule to plead, or demanding a plea when necessary; before the time for pleading has expired, or after a plea has been regularly delivered or filed.” (Tidd's Prac., 512, 513.) We are not aware of any case where a judgment, such as that under consideration, has been held to be merely irregular. (Stacker vs. Cooper Circuit Court, 25 Mo., 401; Doan vs. Holly, 27 Mo., 256; Moss vs. Booth, 34 Mo. 318; Lawther vs. Agee, Id., 372; Harkness vs. Austin, 36 Mo., 47; Downing vs. Still, 43 Mo., 309.) Nor can this judgment be considered as simply informal. It errs in matter of substance; it gives rights and takes away rights, by its terms, not warranted by law, and is therefore erroneous. Being subject to review only for error, therefore, were we to stop here, it would be left in full force, under circumstances which might deprive the party interested, of all future relief. The defendant is entitled to elect what property shall be first sold, and we cannot deprive him of that right. The entire record has been brought here, though in a...