Kirkman v. Stevenson
| Decision Date | 11 March 1922 |
| Citation | 238 S.W. 543,210 Mo.App. 380 |
| Parties | ARTHUR C. KIRKMAN and ALICE M. KIRKMAN, his WIFE, Appellants, v. J. R. STEVENSON, et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Howell County Circuit Court.--Hon. E. P. Dorris, Judge.
AFFIRMED.
Judgment affirmed.
Lamar Lamar & Lamar for appellants.
(1) While a court at any time during the term may have jurisdiction and the power to alter or set aside a judgment entered at such term, any alteration or change in such judgment by the court without notice to the party affected thereby is void and not binding on such party. Ault v Brady, 191 Mo. 709, 728; Caldwell v. Lockridge, 9 Mo. 362; 23 Cyc., page 878f and cases cited in note 94. (2) A court cannot at a subsequent term change its judgment to one which it neither rendered nor intended to render. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors. Ross v Ross, 83 Mo. 100; Burnside v. Ward, 170 Mo. 531, l. c. 543; Davidson v. Davidson, 207 Mo. 702. (3) While a large discretion is vested in the trial court as to amendments nunc pro tunc, this discretion is a judicial one and must be exercised in a judicial manner and such discretion is subject to review. Jackson v. Brown, 211 S.W. 893, 894 Syl. No. 4; Feurt v. Caster, 174 Mo. 289, 299.
J. P. Swain for respondents.
(1) "The amended judgment was the correction merely of a clerical error, and relates back to the date of the original entry, and which the court could make at any subsequent time however long." Dawson v. Waldheim, 89 Mo.App. 245. (2) "The court may alter the memorial of the judgment to make it express the sentence, provided the record entries furnish the evidence to support the correction." Kreisel v. Snavely, 115 S.W. 1060 (). (3) "It is not disputed, nor can it be, that the settled law of this State is that entries, nunc pro tunc can only be made upon evidence furnished by the papers and files in the cause or something of record or in the minute book or judge's docket as a basis to amend by." Missouri, K. & T. Ry. Co. v. Holsclag, 144 Mo. 253, 45 S.W. 1101; Monk v. Wabash Ry. Co., 166 Mo.App. 692, 150 S.W. 1087; State ex rel. Buckner, J., v. Ellison et al., Judges, 210 S.W. 401; Jackson v. Brown, 211 S.W. 893.
--Appeal from action of the Howell County Circuit Court in sustaining a motion for the correction of a judgment by entry nunc pro tunc.
fflArthur C. Kirkman and wife brought suit in the Howell County Circuit Court against J. R. Stevenson, E. V. Stevenson, William Alexander Hubbs and Meldon Farrar to rescind a contract and to set aside certain deeds and secure the return of an automobile and the cancellation of certain checks. The defendants filed separate answers. In the separate answers of J. R. Stevenson, he set up in one count a counterclaim for $ 615 alleged to be due him from plaintiff in another transaction. In another count, he charged that plaintiff had bought the automobile described in the petition from him and had not paid for it and that plaintiff owed him $ 850 on that account. At the trial, the court found for plaintiff on the cause of action alleged in the petition and set the deeds aside, ordered the automobile or its value returned to plaintiffs by defendants Farrar, Hubbs and E. V. Stevenson and cancelled the checks as asked in the petition.
On the counterclaim of J. R. Stevenson for $ 615 the issues were found for him but the judgment is silent as to the counterclaim for $ 850. This trial was had December 6, 1919. At that time the entry on the judge's docket in relation to J. R. Stevenson is as follows: ". . . and J. R Stevenson given judgment for $ 615 and it made a lien on the Henderson Town property provided plaintiff pay J. R. Stevenson to be paid the purchase price of the said auto in the sum of $ 850." The clerk's minutes of the same day is in substantially the same language. On January 6, 1920, but during the same term of court the following entry was placed on the judge's docket: "January 6, 1920--heretofore and after four days of judgment, both parties seemingly agreed that an amendment should be made to the judgment giving J. R. Stevenson, judgment for $ 850 on account of Briscoe car but said proposed amendment does not belong to the judgment and is not made a part of judgment and is not adjudicated." The judgment which it is sought in this proceeding to correct appears to have been entered on the record of the court by the clerk on December 20, 1919. At the December, 1920, term of court, J. R. Stevenson filed a motion to correct this judgment by an order nunc pro tunc so that it would contain the following in addition to what then appeared, to-wit: "It is further ordered by the court that the counterclaim of defendant J. R. Stevenson for the sum of Eight-Hundred Fifty- Dollars for the purchase price of the Briscoe automobile for which plaintiff gave said defendant a worthless check which check was never honored by the bank on which same was drawn be and is hereby dismissed without prejudice to the defendant and that said counterclaim is in no wise adjudicated in this action." At the trial on this motion for nunc pro tunc entry, J. R. Stevenson offered in evidence the entry on the judge's docket of December 6, 1919, and also the entry of January 6, 1920. The plaintiff made no objection to the entry of December 6, 1919, but objected to the entry of January 6, 1920, for the reason that it was not made during the same term at which the case was tried and the court had lost jurisdiction to make it, and that no notice was given plaintiffs' attorney and he had no knowledge of the change. This objection was overruled. Stevenson then offered the court record of December 16, 1919, showing that the court adjourned from that date of January 6, 1920. He then rested. The plaintiffs, Kirkmans, then offered the clerk's minutes of December 6, 1919, which as before stated, was substantially the same as the entry in the judge's docket of same date. Plaintiffs then offered some letters that passed between the judge of the court and attorney for plaintiffs after the trial and before January 6, 1920, in relation to the form of the judgment and what it should contain. These were objected to by J. R. Stevenson on the ground that they were not a part of the files in the case and were incompetent in this proceeding. Plaintiffs then offered what was described in the offer as "a copy of the minutes made at the conclusion of the trial by counsel who drew the judgment at the time." This copy followed the other entries of December 6, 1919, except that it omitted all reference to the $ 850. This was all the evidence offered and the court then sustained the motion of J. R....
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