Montz v. Moran

• Decision Date: 04 January 1915
• Citation: 172 S.W. 613,263 Mo. 252
• Parties: JOSEPH MONTZ v. MICHAEL G. MORAN, Appellant
• Court: Missouri Supreme Court

172 S.W. 613

263 Mo. 252

JOSEPH MONTZ v. MICHAEL G. MORAN, Appellant

Supreme Court of Missouri, Second Division

January 4, 1915

Appeal from Clinton Circuit Court. -- Hon. A. D. Burnes, Judge.

Affirmed.

E. M Swartz for appellant.

The court having rendered a premature judgment at the September 1911, term of court, it had no authority at a subsequent term to set aside that judgment and render another and an entirely different judgment. Courts at a subsequent term cannot correct the mistakes of the judge or render a judgment different from that actually rendered at the previous term. Burnside v. Wand, 170 Mo. 543. "A court cannot at a subsequent term change its judgment to one which it neither rendered nor intended to render." Ross v Ross, 83 Mo. 100. "As a general rule no final judgment can be amended after the term at which it was rendered. The law does not authorize the correction of judicial errors under the pretense of correcting clerical errors." Freeman on Judgments (3 Ed.), sec. 69. Clerical errors may, of course, always be corrected, but judicial errors at a subsequent term cannot. The distinction between clerical and judicial errors is clearly discussed by Thompson, J., in Evans v. Fisher, 26 Mo.App. 541. The judgment entered in the record is presumed to be the one rendered and cannot be corrected or changed until the record, the clerk's minutes, judge's docket or some other paper in the cause show to a reasonable degree of absolute certainty that another and different judgment was rendered than the one entered. That the judgment entered is erroneous, is not sufficient to authorize its change, and the issue is not the correctness of a judgment, but whether the entered judgment was the rendered judgment. Burns v. Sullivan, 90 Mo.App. 1. The last above well considered case collates numerous cases, considers and distinguishes them. It will never do to say that a judgment entered is not the judgment rendered merely because it ought not to have been rendered. Bohn Bros. v. Stivers, 75 Mo.App. 291; State v. Jeffors, 64 Mo. 378; Wooldridge v. Quinn, 70 Mo. 371; Ross v. Ross, 83 Mo. 100; Evans v. Fisher, 26 Mo.App. 541. The court says that the judgment "was prematurely entered," and then proceeded to set the same aside, hold it for naught, and then instanter enters up another and an entirely different judgment than that theretofore entered. That in effect sustained the motion for new trial. There is no pretense that it was the mistake of the clerk, but the judgment entered was the judgment actually rendered by the court. Therefore, in this case the court rendered one judgment at one term of court, set the same aside at a subsequent term and rendered another and entirely different judgment, making two judgments in one case on one trial. This we submit the court could not do. The court may correct a judgment entry so as to make the judgment that which the court in fact rendered, but on the other hand if the court renders a judgment which it intended to render, it has no authority at a subsequent term to change said judgment by rendering one that was not in fact rendered. Davison v. Davison, 207 Mo. 702.

W. M. Fitch for respondent.

FARIS, J. Walker, P. J., and Brown, J., concur.

OPINION

FARIS, J.

Plaintiff sued defendant in equity to cancel a deed. Defendant took leave to plead at the April term, 1911, but failing to do so a judgment by default, upon its face final, was rendered against him at the September term, 1911, the same being the term at which the default was entered. [To distinguish it we will refer to this as the September judgment.]

At this September term and within four days after the rendition of the judgment aforesaid, defendant came in and filed a motion for a new trial and a motion in arrest of judgment. The case was then continued, specifically because of the pendency of said motion for a new trial, with the motion in arrest also pending, and no further action was taken till the January term, 1912, at which time the court took up the defendant's motion for a new trial and in the presence of defendant and his counsel, set aside the final judgment rendered by the court at the September term, upon the ground inferably (though the reason is not clear), that a final judgment rendered at the same term at which the default was noted, was, in this kind of case, prematurely entered. Thereupon the court overruled the defendant's said motions for a new trial and in arrest, and thereafter at the said January term, entered an interlocutory judgment by default, nunc pro tunc, as of the September term, 1911. Following all this and at the same term, the court heard evidence in the case on the part of plaintiff, and entered judgment (which we may, to distinguish the two judgments and for brevity, call the January judgment), for plaintiff, decreeing to him the relief for which he prayed. Defendant, though presumptively still present, both in person and by counsel, asked no leave to plead, or otherwise raised his voice, after the September judgment was set aside and before the January judgment was rendered, but throughout all these proceedings stood mute.

Defendant thereupon appealed, taking time till the next term of the court nisi to file his bill of exceptions, but neglecting so to do in the time given to him, or at any other time, is here now solely upon a bare and most meager record proper.

OPINION.

After the court nisi had set aside the September judgment and overruled defendant's said motions and entered the nunc pro tunc order of default, as also the January judgment, he took this appeal, without having in the interim filed, or asked leave to file, any pleading, or to be heard in any way, and without filing any new motion for a new trial or any other motion of any kind.

Nevertheless, defendant contends that the bare record of the two judgments, which is practically all there is before us, shows that the trial court entered a final judgment by default at the return term, without the antecedent formality of noting a default and entering thereon an interlocutory decree. He further contends that the final judgment entered at the January term, 1912, is a nunc pro tunc final judgment entered in January as of and for the September term, 1911, and that these things are so fatally erroneous as to constitute reversible error upon the record, without more.

We do not so read the orders or the judgment entered by the court at the said January term. We think on the contrary, that they fairly, but concededly not clearly, show that the learned trial judge, deeming the final judgment "which was written up" and "spread upon the records" by the clerk at the return term in September, erroneous in that it was premature, set aside the said final judgment and noted a default and entered an interlocutory decree, nunc pro tunc as of the September term, 1911, and thereupon as the record before us, as we read it, solemnly recites, proceeded to hear the plaintiff's evidence and then entered the final January judgment here appealed from.

Defendant's plain legal duty was to file at the September term his motion to set aside the default judgment taken against him, as the statute provides. [Sec. 2094, R. S. 1909.] Instead of this he filed untimely (if we test the matter by his own position), and therefore useless, motions for a new trial and in arrest. We are of course compelled to name these motions as the defendant names them; since they are not before us.

It was upon defendant's motion for a new trial that the case was continued. This motion had the effect of justifying in law the continuance of a case which otherwise (a final, instead of an interlocutory judgment having been rendered) would have been utterly at an end when the September term adjourned. The said motion of defendant suspended or held up the finality of the judgment till the disposition of the motion (McGurry v. Wall, 122 Mo. 614, 27 S.W. 327; Walter v. Scofield, 167 Mo. 537; Guinan v. Donnell, 201 Mo. 173, 98 S.W. 478), and on such a state of facts a setting aside of the September judgment at the January term, was tantamount to setting such judgment aside at the term at which it was entered, since the pending motion for a new trial had the effect of thus tacking the two terms together, so far as concerns this case.

The question of the right to note default and render final judgment in this kind of an action in a county having less than forty thousand inhabitants, is not directly in the case though involved indirectly. For the error complained of, if found to be such, is error regardless of its prematurity vel non; because if the September judgment was not premature, but absolutely good, it yet was set aside, and as a final judgment thereupon fell out of the case. But if it was good and binding upon defendant as rendered, he having kept alive between terms the court's dominion over it, we ought not to reverse this case, for surely it would then fall into the category of cases which we are by statute forbidden to reverse for that the error is not materially hurtful to appellant (Sec. 2082, R. S. 1909); furthermore, it would fall among that class of cases wherein judgment warranted by the facts having been rendered against defendant, the mere bare form of it interested him no more (Dixon v. Hunter, 204 Mo. 382, 102 S.W. 970; Nave v. Todd, 83 Mo. 601; Emery v. Whitwell, 6 Mich. 474); if the court was not warranted in rendering a judgment nil dicit (as the one here is, though called a default judgment in the record) upon the facts at the return term, and if the September judgment was premature it could have been set aside at the succeeding January term, 1912, even upon a motion filed at that term. [Dougherty v. St. Vincent's...