Levine v. Marchisic
| Decision Date | 19 March 1925 |
| Docket Number | 24705 |
| Citation | 270 S.W. 643 |
| Parties | LEVINE v. MARCHISIC |
| Court | Missouri Supreme Court |
Scholer & Alford, of Kansas City, for plaintiff in error.
Harry L. Jacobs and Julius C. Shapiro, both of Kansas City, for defendant in error.
This cause was transferred to this court by the Kansas City Court of Appeals on the certificate of Trimble, P. J., that the majority opinion is contrary to the holding of this court in Beers v. Atlantic & Pacific R. Co., 55 Mo. 292, and other cases mentioned. The facts and contentions of the parties appear in the majority opinion of the Court of Appeals, by Judge Arnold, which is as follows:
'This is a suit in replevin instituted in a justice court of Kaw township, Jackson county, Mo.
'Defendant was a tenant of plaintiff at No. 1025-1027 East Eighteenth street in Kansas City. After the expiration of the lease defendant remained in possession of the premises until he was asked to vacate, and, when he left, it was charged that he took out all the plumbing fixtures, toilets, flush boxes drains, electric light fixtures, and wash basins. The complaint filed in the justice court sets forth that plaintiff was entitled to the fixtures mentioned in the statement and prays judgment for the recovery of the property and $ 200 damages for the taking and detention thereof.
'The case was taken on change of venue to another justice and was continued several times, finally being dismissed on October 20, 1920. The following day plaintiff moved for reinstatement, the court sustained the motion, and the cause was reinstated. On November 15 thereafter, the cause was tried on its merits and judgment rendered for defendant. On the same day an appeal was taken by plaintiff to the circuit court of Jackson county, where the cause was heard by a special judge in the absence of the regular judge of division No. 9 of said court. Defendant made default, not being present in person nor by attorney. The judgment of the court was as follows:
' 'Now on this day this cause coming on regularly for trial, come plaintiff by attorney, and defendant although lawfully summoned, comes not, but makes default, and plaintiff waives a jury in the trial of this cause, and defendant by making default is deemed to waive a jury in this cause; and the cause is submitted to the court upon the pleadings and the evidence, and the court finds the issues for the plaintiff, and that plaintiff is entitled to recover from the defendant the sum of $ 500.
' 'Wherefore it is ordered and adjudged by the court that the plaintiff do have and recover of and from the defendant the sum of $ 500, together with the costs of this cause and have therefor execution.'
'The following entry in the case appears of record upon the court docket on the 19th day of November term, 1921. Thursday December 8, 1921 (caption omitted):
' 'Now on this day comes plaintiff, and it appearing to the court that in the judgment in the above-entitled cause rendered Monday, the 20th day of June, 1921, as entered by the clerk either through clerical mistake or misprision, the following recital, 'and the cause is submitted to the court upon the pleadings and the evidence, and the court finds the issues for the plaintiff, and that plaintiff is entitled to recover from defendant the sum of $ 500,' and the court being advised that said judgment should recite that the court finds that plaintiff is entitled to the possession of the property in question, valued at the sum of $ 300, and for damages for the wrongful taking and detention of same by defendant the sum of $ 200, as appears from the minutes, files, petition and records of the court; and the court of its own motion being satisfied thereof does order and adjudge that said judgment be corrected and amended and entered nunc pro tunc in order to show the above facts.
' 'It is therefore considered, ordered, and adjudged that said judgment is now amended nunc pro tunc as of Monday, the 20th day of June, 1921, to read as follows:
' 'Now on this day this cause coming on regularly for trial, comes plaintiff by attorney, and defendant, although lawfully summoned, comes not but makes default, and plaintiff waived a jury in the trial of this cause, and the defendant by making default is deemed to waive a jury in this cause; and the cause is submitted to the court upon the pleadings and the evidence, and the court finds the issue for the plaintiff, and against defendant, and that plaintiff is entitled to the possession of the property in question, and does assess the value of said property at the sum of $ 300, and the damages for injuries to the property and for the taking and detention thereof at the sum of $ 200.
' 'It is therefore considered, ordered, and adjudged by the court that plaintiff have and recover of the defendant the sum of $ 200, the damages aforesaid as assessed, together with his costs in this behalf expended, and have execution therefor, and that defendant deliver to plaintiff the property in question; or, if plaintiff so elect, that plaintiff recover of defendant the value of said property assessed at $ 300, and the costs of this suit and that he have execution therefor.'
'On December 14, 1921, defendant filed his motion to set aside the nunc pro tunc entry above set out, for the following reasons, among others:
' 'For the reason that the said nunc pro tunc entry attempts to cure a matter of substance in the judgment as rendered by the court, and not a mere clerical error or misprision of the clerk or any matter of form as to the entry of said judgment.
' 'For the reason that although said nunc pro tunc entry recites that the judge of this court makes the same by virtue of the minutes, papers, files, and other records in this case, yet there are no minutes or files in the case upon which to base the nunc pro tunc entry, the judge's minutes being, 'Judgment for the plaintiff for $ 500 and costs.' ''
'On December 19, 1921, a nunc pro tunc entry was made by the judge who tried the case, in words and figures identical with the entry made by the regular judge as hereinabove set out. The case is before us on a writ of error, and defendant charges, among other things, that the judgment of the trial court is void for the reason that this is a proceeding in replevin, and it was necessary to find that plaintiff was entitled to the possession of the property before any judgment for money could be assessed against defendant. Also, that there is no minute entry or paper in the case upon which to base an entry nunc pro tunc.
'We think defendant's position is not well taken. As to the first contention, while the judgment did not conform to the requirements of the statute as to a specific finding that the plaintiff was entitled to possession of the property, still it was not on that account wholly void. Carroll v. Hancock, 57 Mo.App. 228, 231; Clarkson v. Jenkins, 48 Mo.App. 221, 223; Central, etc., Trust Co. v. Wulfert, 198 Mo.App. 85, 199 S.W. 724, 727. The minute entry of the judge on his docket shows that plaintiff appeared, defendant made default jury waived, evidence heard, 'Finding for plaintiff $ 500 and costs' The judgment, as written, shows the same thing and states that the 'court finds the issues for the plaintiff.'
'Now, what were the issues: They are stated in the petition and were: (1) That plaintiff is lawfully entitled to the possession of the property; (2) that it is wrongfully detained by defendant; (3) that it was of the value of $ 300; and (4) that plaintiff has been damaged $ 200. No judgment whatever could have been rendered for plaintiff unless he was entitled to the possession of the property. Hence in finding the issues for plaintiff and rendering judgment in his favor, the court necessarily found that plaintiff lawfully was entitled to possession of the property. While the judgment named $ 500 as the amount of the damages, yet it will be observed that no such amount of damages was asked in the petition, but only $ 200, while the value of the property was fixed at $ 300, and the court could not have rendered any such judgment as $ 500 for damages. Under the petition and the evidence, the court in its judgment 'finds the issues for the plaintiff,' and the only judgment that could be rendered for damages was $ 200, and the $ 500 was manifestly a misprision, or clerical error, in naming the $ 300 value and the $ 200 damages all in one amount. In other words, the entries in the case and the pleadings furnish evidence upon which to base the order. Dorton v. Kansas City Rys. Co., 204 Mo.App. 262, 224 S.W. 30, 31, and cases cited.
'Defendant also urges that the justice court was without jurisdiction to reinstate the cause on his docket after judgment by default, because the costs were not paid. The solution of this question involves the construction of section 2801, Rev. Stat. 1919, which reads as follows:
' 'Every justice of the peace shall have power, on the application of the party aggrieved,...
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