Jones v. St. Joseph Fire & Marine Ins. Co.

• Decision Date: 28 February 1874
• Citation: 55 Mo. 342
• Court: Missouri Supreme Court
• Parties: BENJAMIN F. JONES, Respondent, v. THE ST. JOSEPH FIRE & MARINE INSURANCE COMPANY, Appellant.

55 Mo. 342

BENJAMIN F. JONES, Respondent,

v.THE ST. JOSEPH FIRE & MARINE INSURANCE COMPANY, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Clinton Circuit Court.

B. R. Vineyard, Judson and Bernard, for Appellant.

I. The petition nowhere alleges the value of the property destroyed, or that it was of any value whatever, or that the plaintiff sustained any loss, or that the destruction of said property so insured was any damage or loss to plaintiff.

II. The court without the intervention of a jury had no authority to try and determine the matters in controversy in this case. (Wagn. Stat., 1040, § 12.) The defendant had filed an answer pleading to the merits. This was an ““appearance” as meant by the statute. (Wagn. Stat., 1041, § 14; Benton vs. Lindell, 10 Mo., 557; Pratt vs. Carl, 9 Mo., 164.)

III. After an appeal taken from the Circuit Court the record cannot be changed or altered by either party, nor can an entry be made nunc pro tunc, and no addition can be made to the record. (Stewart vs. Stringer, 41 Mo., 400; Ladd vs. Couzins, 35 Mo., 513.) The nunc pro tunc judgment entered in the court below, was made without the introduction of any evidence whatever. Several terms of the Circuit Court had intervened, and to correct the judgment without evidence, was a usurpation of power and authority on the part of the trial court, unwarranted by law. (Saxton vs. Smith, 50 Mo., 490; Gibson vs. Chouteau, 45 Mo., 171.)

Wm. Henry, for Respondent.

I. The appellant waived its right to a trial by jury by failing to appear at the trial of the case. (Wagn. Stat., 1041, § 14.)

II. This court will not interfere with the discretion of an

inferior court in refusing to set aside a judgment, after a trial at which the defendant failed to appear, except in a very plain case. (Brolaski vs. Putnam, 34 Mo., 459; 40 Mo., 178.)

III. There can be no advantage taken of the petition now. The point was not raised in the Circuit Court, and it is good after verdict; the defects in the allegations of damages, etc., being cured by intendment of law. (Steph. Pldgs. 8 Am. Ed., 148-9; Richardson vs. Farmer, 36 Mo., 35; Powell vs. Reynolds, 51 Mo., 154; Bowie vs. Kansas City, 51 Mo., 454.)

IV. It cannot be doubted, that the nunc pro tunc entry might properly be made by the Circuit Court (Mann vs. Schroer, 50 Mo., 306; Priest vs. McMaster, 52 Mo., 60; Gibson vs. Chouteau's heirs, 45 Mo., 171); and it makes no difference that the correction of the record was made after the appeal to this court. (De Kalb Co. vs. Hixon, 44 Mo., 341, and authorities there cited.)

NAPTON, Judge, delivered the opinion of the court.

Since this case came here by appeal, an amendment nunc pro tunc of the judgment originally entered was made in the Circuit Court, correcting errors in the original entry made by the clerk. This was done on motion after due notice to the opposite party; and the correction having been ordered and made, we will presume that the court had sufficient evidence in its records to authorize the change in the entry; and the objection now taken, that the court had no power, after the case was brought here by appeal or writ of error to make an entry nunc pro tunc, has been heretofore considered and determined otherwise by this court, on the authorities cited. (De Kalb Co. vs. Hixon, 44 Mo., 342.)

The action was on a policy of insurance to recover the amount insured on account of the destruction of a house by fire. An answer was filed to the petition, and a replication filed to the answer, but on the day set for the trial the defendant did not appear and the case was tried by the court ex parte plaintiff, and a verdict given and judgment for the plaintiff. Subsequently a motion was made by the defendant to set aside this verdict, on the ground that one of the defendant's attorneys died shortly before the term of the court, and his partner was sick at his home in Chillicothe at the day of trial, and could not attend to the case, but the court overruled the motion. It was also urged, that the court had no power to try the case, as the defendant did not waive his right to a jury. Both grounds were decided insufficient and a new trial refused. The defendant also moved in arrest on the ground that the petition did not state any cause of action, which was also overruled, and the case is brought here for review.

It was a matter of discretion with the court to set aside the verdict, for the causes alleged in the affidavits and motion of defendant, and we cannot see that it was improperly...