Potter v. McLin
| Decision Date | 08 November 1948 |
| Citation | 214 S.W.2d 751,240 Mo.App. 708 |
| Parties | Retta Potter, et al., Respondents, v. R. A. McLin, et al., Appellants |
| Court | Kansas Court of Appeals |
Delivered
Appeal from Circuit Court of Johnson County; Hon. James R. Garrison Judge.
Reversed and remanded.
Ike Skelton for appellants.
(1) Plaintiffs' motion is merely to amend the court's judgment nunc pro tunc. Equitable powers can only be invoked to obtain relief against a judgment in an independent equitable action. Jeude et al. v. Sims et al., 258 Mo. 26, 166 S.W. 1048; Simms et al. v. Thompson et al., 291 Mo. 493, 236 S.W. 876; Quattrochi v Quattrochi, 179 S.W. 2d 757. (2) Plaintiff's motion is improper. Equity will not correct a judgment for mere irregularities or for a judicial mistake, or render judgment which was not actually rendered. State ex rel. Woolman v Guinotte, 221 Mo.App. 466, 282 S.W. 68. (3) Plaintiffs' motion does not state any facts which would authorize the court to amend its judgment nunc pro tunc. Rolla Special Road Dist. v. Phelps County, 116 S.W. 2d 61; Vaughan v. Kansas City Gas Co., 236 Mo.App. 669, 159 S.W. 2d 690. (4) Parol evidence is never admissible upon a motion for an order to amend a judgment nunc pro tunc. Such judgments can only be so amended when something in the record, or the judge's minutes, or the clerk's minutes, or the papers on file in the cause show that a mistake was made in entering the judgment in the permanent court records. Schulte v. Schulte, 140 S.W. 2d 51; Rolla Special Road Dist. v. Phelps County, 116 S.W. 2d 61; Saxton v. Smith, 50 Mo. 490; Blize et al. v. Castlio, 8 Mo.App. 290; Frank v. Myers, 109 S.W. 2d 54, 58; Humphries v. Shipp, 194 S.W. 2d 693, 238 Mo.App. 985; Townsend v. Moseley, 134 S.W. 2d 660, 234 Mo.App. 538; Guin Inv. Co. v. Farmers Elevator Co., 156 S.W. 2d 62; Nelson v. Massman Construction Co., 91 S.W. 2d 623; Marley v. Marley, 204 S.W. 2d 261; Overton v. Overton, 37 S.W. 2d 565, 567, 327 Mo. 530; Harrison v. St. Louis, San Francisco Ry. Co., 99 S.W. 2d 841, 339 Mo. 821; Horn v. Shell Pipe Line Corp., 52 S.W. 2d 16; Williamson v. National Garage Co., 203 S.W. 2d 126; Girvin v. Metropolitan Life Ins. Co., 84 S.W. 2d 644; Toedtman v. Grass, 116 S.W. 2d 153; Fritz v. Manufacturers Ry. Co., 124 S.W. 2d 603. (5) An entry nunc pro tunc can only be made to correct a clerical error. State ex rel. Holtcamp v. Hartmann, 330 Mo. 386, 51 S.W. 2d 22; Wiggins v. Perry, 343 Mo. 40, 119 S.W. 2d 839; Thompson v. Baer, 139 S.W. 2d 1080; Harbor v. Pacific R. R. Co., 32 Mo. 423.
Gayles R. Pine for respondents.
(1) Proceedings in equity is proper remedy to correct and modify judgment of record obtained or entered through accident or mistake to secure relief of parties injured by mistake. Marley v. Marley, 204 S.W. 2d 261; Loveland et al. v. Davenport et al., 188 S.W. 2d 850; Krashin v. Grizzard, 31 S.W. 2d 984, 326 Mo. 606; Smoot v. Judd, 61 S.W. 854, 161 Mo. 673. (2) The Appellate Court must give consideration to the theory upon which the case was tried below and hold the litigants to the theory adopted at the trial thereof. Frank v. Myers, 109 S.W. 2d 54; Humphries v. Shipp, 194 S.W. 2d 693, 238 Mo.App. 985; Townsend v. Moseley, 134 S.W. 2d 660, 234 Mo.App. 538; Guin Inv. Co. v. Farmers Elevator Co., 156 S.W. 2d 62; Nelson v. Massman Construction Company, 91 S.W. 2d 623. (3) Extrinsic facts and evidence is admissible in equity case to correct and modify judgment obtained and entered by accident or mistake in former action between same parties. Marley v. Marley, supra; Overton v. Overton, 37 S.W. 2d 565, 327 Mo. 530. (4) Defendants' assignment of error as to admissibility of testimony was not properly preserved by defendants in their objections. Harrison v. St. Louis, San Francisco Ry. Co., 99 S.W. 2d 841, 339 Mo. 821; Horn v. Shell Pipe Line Corp., 52 S.W. 2d 16; Williamson v. National Garage Co., 203 S.W. 2d 126; Girvin v. Metropolitan Life Ins. Co., 84 S.W. 2d 644; Toedtman v. Grass, 116 S.W. 2d 153; Fritz v. Manufacturers Ry. Co., 124 S.W. 2d 603.
This is an appeal from an order of the court purporting to modify its record of a voluntary dismissal of the action.
The respondents, as plaintiffs below, filed an action October 1, 1946, in the Circuit Court of Johnson County for damages arising out of alleged violation of an alleged contract of sale of real estate sold to them by the defendants. After answer filed by the defendants (appellants herein), the cause was taken up for trial December 4, 1946. A jury was empaneled and sworn, and much of the evidence on the part of plaintiffs was introduced. At that stage of the proceedings the plaintiffs dismissed the case. The court entered into its docket book the following entry:
.
Thereafter the following record was made by the clerk, after showing appearances and preliminaries:
.
On November 8, 1947, the plaintiffs filed in said cause a pleading entitled "Motion For Equitable Relief To Correct Judgment". That pleading alleged, in substance, that on December 4, 1946, plaintiffs dismissed the cause without prejudice and with expressed intention and understanding with the court at that time that plaintiffs were going to file another suit concerning the same matter, and that such right and reservation were known to the court at the time the entry of dismissal was made, but that the court failed to make proper entry following the dismissal that the same was without prejudice in accordance with the facts existing; that through error or mistake the proper entry showing dismissal without prejudice was not made of record, and that plaintiffs were entitled to have same corrected to conform with the facts under the equitable powers of the court. The prayer was that the court exercise its equitable powers and authority and to correct and modify said judgment of dismissal to conform to the facts of said dismissal and to make entry of record showing said dismissal to be without prejudice and for further relief.
Over the objection of the defendants, the plaintiffs produced as witness at the hearing of said motion the former judge of said court who had presided at the trial of said cause and who had made the entry in the docket book, as aforesaid. That witness said he remembered the cause well since it was the last case over which he presided, and that he had made the entry in the docket book above quoted; that he remembered that the jury had been sworn, and that the plaintiffs had introduced evidence; that he recalled the conversation with the attorney for the plaintiffs; that witness had in mind sustaining a demurrer to the evidence, most of which was already introduced; that witness felt that plaintiffs had not made a case on their petition of alleged misrepresentation, deceit and fraud; that plaintiffs' attorney then said that he intended to proceed on a different theory and was going to dismiss the cause and try the case upon such different theory; that witness intended to dismiss the cause without prejudice; that he did not recall any objection made on the part of defendants' attorney to any dismissal without prejudice although such objection may have been made; that the records of the court thereafter made were made by the clerk. There was no further evidence offered upon the hearing of the motion. The court on November 26, 1947, sustained the motion and ordered the record corrected and modified "by adding the words 'without prejudice' after the words 'plaintiff voluntarily dismisses cause'". Defendants appealed from said order.
Appellants contend that the motion to correct the record is not a proceeding in equity, but merely a motion to amend a record nunc pro tunc; that such relief in equity can only be reached through an independent equitable action; that such a motion could not convert the suit at law to one in equity that equity will not correct a judgment for mere irregularities or for a judicial mistake, or render a judgment which was not actually rendered; that the motion does not state facts that would authorize an order to correct a judgment nunc pro tunc; that it was error to permit the former trial judge to testify...
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