Levine v. Marchisic, No. 24705.

CourtMissouri Supreme Court
Writing for the CourtHigbee
Citation270 S.W. 643
PartiesLEVINE v. MARCHISIC.
Docket NumberNo. 24705.
Decision Date19 March 1925
270 S.W. 643
LEVINE
v.
MARCHISIC.
No. 24705.
Supreme Court of Missouri, Division No. 2.
March 19, 1925.

Error to Circuit Court, Jackson County; J. H. Austin, Judge.

Action by Joseph J. Levine against M. J. Marchisic. Judgment for defendant in justice court was reversed in circuit court, and defendant brings error. Transferred to Supreme Court from Kansas City Court of Appeals. Judgment of circuit court affirmed.

Scholer & Alford, of Kansas City, for plaintiff in error.

Harry L. Jacobs and Julius C. Shapiro, both of Kansas City, for defendant in error.

HIGBEE, C.


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 Raw 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 MO 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

270 S.W. 644

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...

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5 practice notes
  • State ex rel. Bostian v. Ridge, No. 39364.
    • United States
    • United States State Supreme Court of Missouri
    • July 2, 1945
    ...ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396; Levine v. Marchisic, 270 S.W. 643. (3) The Circuit Court of Jackson County, at the time of the attempted filing of the petition and affidavit to set aside the allowance of the cl......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...appeal. Trundle v. Providence-Washington Ins. Co., 54 Mo. App. 188; Ess v. Griffith, 128 Mo. 150, 30 S.W. 343; Levine v. Marchisic, 270 S.W. 643; State ex rel. Knisley v. Board of Trustees, 186 S.W. 680; Padgett v. Smith, 205 Mo. 122, 103 S.W. 942. (5) Under Section 847.17 of the Civil Code......
  • State ex rel. Products Co. v. Pearcy, No. 29835.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1930
    ...not destroy his jurisdiction over the cause. It was simply an erroneous use, or abuse, of jurisdiction. [Levine v. Marchisic (Mo. Div. 2), 270 S.W. 643, Again, conceding out of precaution that the relator's answer attempted, though vainly, to interpose a plea of set-off or counterclaim — st......
  • McKenna v. Wittman, No. 16802.
    • United States
    • Court of Appeal of Missouri (US)
    • February 17, 1930
    ...its jurisdictional limits was not involved. Hence that case is not authority here. The same is true of Levine v. Marchisic (Mo. Sup.) 270 S. W. 643, 645, where the question arose of the jurisdiction of a justice of the peace who had set aside a dismissal without requiring payment of costs a......
  • Request a trial to view additional results
5 cases
  • State ex rel. Bostian v. Ridge, No. 39364.
    • United States
    • United States State Supreme Court of Missouri
    • July 2, 1945
    ...ex rel. Connors v. Shelton, 238 Mo. 281, 142 S.W. 417; Leahy v. Mercantile Trust Co., 296 Mo. 561, 247 S.W. 396; Levine v. Marchisic, 270 S.W. 643. (3) The Circuit Court of Jackson County, at the time of the attempted filing of the petition and affidavit to set aside the allowance of the cl......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • December 8, 1947
    ...appeal. Trundle v. Providence-Washington Ins. Co., 54 Mo. App. 188; Ess v. Griffith, 128 Mo. 150, 30 S.W. 343; Levine v. Marchisic, 270 S.W. 643; State ex rel. Knisley v. Board of Trustees, 186 S.W. 680; Padgett v. Smith, 205 Mo. 122, 103 S.W. 942. (5) Under Section 847.17 of the Civil Code......
  • State ex rel. Products Co. v. Pearcy, No. 29835.
    • United States
    • United States State Supreme Court of Missouri
    • June 3, 1930
    ...not destroy his jurisdiction over the cause. It was simply an erroneous use, or abuse, of jurisdiction. [Levine v. Marchisic (Mo. Div. 2), 270 S.W. 643, Again, conceding out of precaution that the relator's answer attempted, though vainly, to interpose a plea of set-off or counterclaim — st......
  • McKenna v. Wittman, No. 16802.
    • United States
    • Court of Appeal of Missouri (US)
    • February 17, 1930
    ...its jurisdictional limits was not involved. Hence that case is not authority here. The same is true of Levine v. Marchisic (Mo. Sup.) 270 S. W. 643, 645, where the question arose of the jurisdiction of a justice of the peace who had set aside a dismissal without requiring payment of costs a......
  • Request a trial to view additional results

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