Manning v. Driscoll's Estate
| Decision Date | 06 October 1942 |
| Docket Number | No. 25856.,No. 26078.,26078.,25856. |
| Citation | 164 S.W.2d 981 |
| Parties | MANNING v. DRISCOLL'S ESTATE. |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court, Scotland County; W. A. Higbee, Judge.
"Not to be reported in State Reports."
Suit by Josie Manning against estate of Edward F. Driscoll, deceased, Edwin M. Driscoll, administrator, to recover on a claim against the estate for alleged services performed by plaintiff at special instance and request of decedent during his lifetime. From adverse judgment on the merits and from a judgment sustaining defendant's motion to expunge from the records the judgment in the named case, the plaintiff appeals.
Judgment sustaining defendant's motion to expunge the record affirmed, and appeal from judgment on the merits dismissed.
Smoot & Smoot, of Memphis, for appellant.
L. F. Cottey and Allen Rolston, both of Lancaster, for respondent.
We have before us two appeals growing out of the one case, the first being an appeal by plaintiff from what is aptly called the main case, and the second an appeal by plaintiff from the action of the court in sustaining defendant's motion to expunge from the record the judgment in the main case.
There is before us appellant's abstract in the main case (No. 25856 in this Court), also appellant's abstract of the hearing on defendant's motion to expunge (No. 26078 in this Court), and respondent's additional abstract. By consent of the parties the two appeals have been consolidated in this Court and submitted together. Hence we take our statement of the facts from the three abstracts above mentioned. There is little or no dispute as to the actual facts which we have concluded must determine the issues raised, the contentions arising more on questions of law than a dispute as to the facts, but a rather detailed statement of the proceedings in the circuit court is necessary to an understanding of the issues.
The case originated in the probate court of Scotland county by plaintiff, on April 5, 1940, filing a claim against the estate of Edward F. Driscoll, deceased, for alleged services performed by plaintiff at the special instance and request of the decedent. By stipulation of the parties the cause was certified to the circuit court of Scotland county, and came on for hearing and trial before the court and a jury on September 16, 1940. Plaintiff, claimant, introduced evidence and rested, whereupon the defendant offered and presented to the court a motion as follows:
"Now at the close of the Claimant's evidence, comes the defendant and prays the Court to give to the jury the following instruction, to-wit:
"The Court instructed the jury that under the law and the evidence in this case your verdict must be for the defendant, Estate of Edward F. Driscoll, deceased." Thereupon the following took place:
Thereupon, plaintiff's counsel immediately prepared and filed and presented to the Court a motion which they denominated "Plaintiff's motion to set aside the involuntary nonsuit suffered in this Court on the 16th day of September, 1940." The motion was immediately presented and was overruled, and plaintiff thereupon filed application and affidavit for an appeal, which was allowed to this Court.
The Court made no entries whatever on the judge's docket or on the motion for a directed verdict. However, the minutes as kept by the clerk and the judgment thereafter spread on the court records by the clerk show the following:
Following this record is the further record as written by the clerk of the court, reciting that plaintiff's motion to set aside the involuntary nonsuit was heard, and the following disposal thereof:
"It is therefore considered and adjudged by the Court that the involuntary nonsuit heretofore suffered by plaintiff, Claimant, is not set aside and it is therefore considered and adjudged by the Court that the plaintiff, Claimant, take nothing by her claim and writ as against the estate of Edward F. Driscoll, deceased, and that the defendant, Estate of Edward F. Driscoll, deceased, go hence without day and that defendant, Estate of Edward F. Driscoll, recover of plaintiff its costs in this behalf laid out and expended and that it have execution therefor."
Thereafter, on November 5, 1941, at a subsequent term of court, defendant filed a motion to expunge from the court records the two judgments above referred to, alleging that neither of said purported and pretended judgments was ever rendered or approved by the Court in said cause, and that no ruling therein ascribed to the Court was ever made by the Court, and that the same do not constitute any judgment of the Court, and are wholly void and of no force or effect; that the same were improperly and improvidently inscribed and entered upon the records of the Court in this cause by the clerk of the court, without reason or authority, and without the knowledge, consent or approval of defendant, or the Court.
To this motion of the defendant to expunge, the plaintiff filed an answer on December 8, 1941, denying the allegations of the motion, and alleging that the judgments sought to be expunged were the judgments announced by the Court in said cause and were duly and regularly inscribed and spread of record by the clerk of the court by the authority and under the direction of the Court and were submitted to the Court before being spread on the records; and further alleging that plaintiff had taken and perfected an appeal in said cause to the St. Louis Court of Appeals and the cause was set for hearing in said Court of Appeals on December 5, 1941, and that on November 3, 1941, appellant had filed in said Court of Appeals her abstract, statement and brief, and that the circuit court was without authority or jurisdiction to vacate or expunge said judgments; and alleging further that the judgments sought to be expunged were in conformity with the minutes and records as kept by the clerk and the same are not contradicted by any minutes made by the court or by any paper on file or other written evidence, and that the judge of the Court made no notes or minutes upon his docket in the case contradicting the judgments.
The defendant's motion to expunge and plaintiff's answer thereto were heard by the Court on December 15, 1941, and defendant's motion to expunge was sustained, the record reciting:
"The Court further finds that the judgments complained of in defendant's motion herein are not the judgments of this Court; they were written and spread on the record without the knowledge of the Court and the Court so finds; and they do not reflect correctly what transpired and the Court so finds."
Thereupon, on the same day, plaintiff filed motion for new trial and motion in arrest of judgment, both of which were overruled, and plaintiff perfected an appeal to this Court.
At the hearing of the motion to expunge plaintiff objected to the hearing of any parol testimony, which objection was overruled.
The clerk of the court identified the records, and testified that his minutes were copied from a memorandum prepared in part by plaintiff's attorney; that he sent the memorandum to the circuit judge, who lived at Lancaster, and it came back without any comment and he put it on record; that later the judge called down and wanted it, and he wrote the judge that he had it on record but if there were any changes he wanted he would make it on the record; that it came back the second time; The clerk further said the uniform custom was not to record a judgment without the judge's signature, and that was why he called the judge. The clerk identified Exhibit A.-2 as the motion praying the court to give the demurrer, and when asked if that was the paper lie referred to when he made the entry that the demurrer was sustained, he said he didn't know.
It was agreed by counsel that Exhibit A.-2 is the only paper in the files purporting to be a demurrer.
The clerk further said that the motion for a directed verdict was argued while the jury were out, as far as he remembered; that he remembered talk about a nonsuit, and doesn't remember the jury ever coming back.
Madaline P. Hopkins, the official court reporter, was called as a witness, and she read from her notes what occurred at the conclusion of the cause, as follows:
Mrs. Hopkins further said that the jury left the room, and she didn't recollect that they returned to the room. That there was no endorsement on Exhibit...
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