Lexington & St. Louis R.R. Co. v. Mockbee
Decision Date | 31 October 1876 |
Citation | 63 Mo. 348 |
Parties | LEXINGTON AND ST. LOUIS RAILROAD COMPANY, Defendant in Error, v. CUTHBERT MOCKBEE, Plaintiff in Error. |
Court | Missouri Supreme Court |
Error to Pettis County Circuit Court.
Crandall & Sinnett, for Plaintiff in Error.
I. The original entry of judgment in this cause was a nullity (Catiche vs. Circuit Court, 1 Mo. 436: Caldwell vs. Stephens, 57 Mo. 589.)
II. There was no entry on the judge's docket, or other record evidence, authorizing the judgment entered nunc pro tunc.(Norfolk vs. Pate, 25 Mo. 597; Pockman vs. Meatt, 49 Mo. 348; Saxton vs. Smith, 50 Mo. 490; Dunn vs. Raley, 58 Mo. 134; Jones vs. Hart, 60 Mo. 354.)
In Jones vs. Hart, which is a very similar though not so strong a case as the one at bar, this court held that there was no “mere clerical mistake” subject to correction, as such, by entry nunc pro tunc, and reversed the judgment.
Vest & Gantt, for Defendant in Error, cited: Parker vs. Rugg, 9 Gray, 209; Moster vs. Moster, 53 Mo. 326; Wagn. Stat. 1064, § 3; Hann. & St. Jo. R. R. Co. vs. Morton, 20 Mo. 70; Gibson vs. Chouteau's Heirs, 45 Mo. 171; Robertson vs. Neal, 6 Mo. 579; Turner vs. Christy, 50 Mo. 145; Mann vs Schrœr, 50 Mo. 306; Saxton vs. Smith, 50 Mo. 490.WAGNER, Judge, delivered the opinion of the court.
This was a writ of error, prosecuted from a judgment of the circuit court making an entry nunc pro tunc. From the record it appears that on January 6th, 1869, commissioners were appointed by the circuit judge of Pettis county, on the petition of the plaintiff, to assess the damages, if any, caused to the lands of the defendant by reasons of the plaintiff's road being located over and through them.
The 9th section of the plaintiff's charter, under which the proceedings were had, provides, that:
The 10th section provides, that the persons appointed to view and value the lands shall file their report and plat in the county in which the land, or a part thereof, is situated, and if no valid objections are made to the report, the court shall render judgment in favor of the owner against the company, for the amount of the damages assessed, and after their payment a judgment shall be rendered, vesting in the company the title.
It is further provided that the objections to the report must be filed within ten days after the report is filed.
Some of the records in the proceeding are lost and cannot be found; but it is shown that due notice was given to the defendant of the application for the appointment of commissioners, and the commissioners having filed their report in which they assessed no damages to the land, he appeared at the July Term, 1871, and filed his objections in writing to the report. The only ground of objection made by the defendant was, that the report was unjust in not awarding damages to him, and that the plat filed with the report was not correctly drawn.
These objections were heard and overruled by the court, and judgment was rendered for the company. Upon the judge's docket the case is stated, and the following entry is made: From this entry it appears very clear that the objections of the plaintiff there, who is defendant here, were overruled, and final judgment was rendered for the defendant, who is the present plaintiff. The clerk, in writing up the order of the court, rendered judgment that plaintiff take nothing by his action, and that defendant recover costs.
This was not the judgment required and authorized by the law governing the case. When the objections were overruled, and judgment given for the defendant, it should have been a judgment vesting the title in the company.
On the 5th day of January, 1874, the plaintiff filed its petition to have the proper judgment entered nunc pro tunc, and at the May Term, 1874, the court granted the prayer of the petition and rendered judgment accordingly. From this last judgment the defendant has prosecuted his writ of error.
Certain informalities are relied upon in the first proceeding, which, it is contended, render the first judgment invalid; but we cannot notice them now.
The writ of error, now before us, was sued out more than three years after the rendition of that judgment, and, therefore, it cannot be brought up now. If we were, however, disposed to look into the proceedings of condemnation, we do not think the errors assigned are maintainable. They are mostly technical, and whatever there was of substance, was unquestionably waived.
The defendant was brought in on notice, and the court acquired jurisdiction. The only objections made were, that the plat was not accurate, and that damages should have been awarded to him. The court heard the testimony and decided against him. This was his reliance then, and he cannot be permitted to change his ground now.
The only question is, whether the court did right in entering up the judgment nunc pro tunc. The law pointed out the judgment that the court was required to render, and whether it should render that judgment or not, was the matter in issue. Defendant presented objections against it, but they were overruled, and the judgment was ordered for the company as prayed for in the petition, and the clerk made a mistake or omission in writing up the formal judgment.
All this sufficiently appears of record and presented the requisite data to amend by. It follows that the court properly rendered...
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