Missouri, K. & E. Ry. Co. v. Holschlag

• Decision Date: 24 May 1898
• Citation: 45 S.W. 1101,144 Mo. 253
• Court: Missouri Supreme Court
• Parties: MISSOURI, K. & E. RY. CO. v. HOLSCHLAG et al.

45 S.W. 1101

144 Mo. 253

MISSOURI, K. & E. RY. CO. v. HOLSCHLAG et al.

Supreme Court of Missouri, Division No. 1.

May 24, 1898.

RECORD — CORRECTION — PRESUMPTIONS — APPEAL — REVIEW.

1. The verity of the record is presumed, and, in a proceeding to correct it by an entry nunc pro tunc, such presumption will control where the evidence afforded by the papers and files in the case and that by the minute book and judge's docket are in conflict.

2. The date of file marks on an opinion by a circuit court in support of its decision, it being not a necessary paper in the case, or necessarily contemporaneous with the judgment, does not rebut the presumption of correctness of a different date of entry of the latter, as shown by the record.

3. Errors cannot be presented for review on appeal based on the overruling of a motion for new trial filed out of time, and only such as are apparent on the face of the record will be considered.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Action by the Missouri, Kansas & Eastern Railway Company against Bernard Holschlag and others. From a denial of its application for a nunc pro tunc entry of judgment, and from the judgment in favor of defendants, plaintiff appealed. Affirmed.

Geo. P. B. Jackson and G. Pitman Smith, for appellant. Emil Rosenberger and J. D. Barnett, for respondents.

WILLIAMS, J.

The circuit court overruled appellant's application for a nunc pro tunc entry, as of the 21st day of December, 1893, of the judgment in this case. The record shows that the judgment was rendered on the 19th of said month. This ruling presents the first question for decision. Plaintiff below (the appellant herein) claimed to have acquired a right of way for its railroad across defendants' farms, and alleged that they, with weapons and violent means, were forcibly resisting the construction of said railroad over said lands, and asked an injunction to prevent interference with said work. A temporary restraining order was issued on the 11th of October, 1892. Defendants appeared to the suit, and filed answers. The case was heard on the 17th of November, 1893, and taken under advisement. There was no record entry of this, however. The records of the court show that judgment was rendered for defendants, and plaintiff's bill dismissed, on the 19th of December, 1893. Plaintiff, at the May term, 1897, filed a motion for a nuuc pro tunc entry, as above stated. The date of the judgment becomes material, because, if it was rendered on the 19th, the motion for a new trial was clearly filed out of time. It was shown upon the hearing of the application for the nunc pro tunc entry that the clerk did not write the judgment until a month or more after it was rendered; that he began to enter it in a blank space in the record of the proceedings of the court on December 2d, and afterwards put it upon the 19th. It further appeared that it was written in different ink, and apparently at a different time, from the opening order on the 19th. There was nothing in the clerk's minutes to show when the judgment was rendered. The entry upon the judge's docket in the handwriting of the judge was as follows: "Trial by court. Bill dism'd;" and then in pencil, written by the clerk, "Dec. 2nd." The judge wrote an opinion stating his conclusions in the case, which ended with these words: "This bill is dismissed." This paper is marked by the clerk, "Filed ...