Pulitzer Pub. Co. v. Allen

• Decision Date: 17 November 1908
• Citation: 113 S.W. 1159,134 Mo. App. 229
• Parties: PULITZER PUB. CO. v. ALLEN.
• Court: Missouri Court of Appeals

113 S.W. 1159

134 Mo. App. 229

PULITZER PUB. CO. v. ALLEN.

St. Louis Court of Appeals. Missouri.

November 17, 1908.

Rehearing Denied December 1, 1908.

1. JUDGMENT (§ 315) — AMENDMENT — NUNC PRO TUNC.

An amendment of a judgment nunc pro tunc must be based on matter of record, and not extraneous evidence.

2. JUDGMENT (§ 323) — AMENDMENT — NOTICE OF APPLICATION.

Notice must be given to the adverse party of an application to amend a judgment nunc pro tunc, unless it is obvious that he cannot be aggrieved by the proposed amendment.

3. JUDGMENT (§ 331)—AMENDMENT — OPERATION AND EFFECT.

On collateral attack, an order amending a judgment nunc pro tunc must be sustained, unless it is apparent that the court was without power to make the amendment, but on a direct attack the sufficiency of the evidence adduced to show that the original entry was erroneous may be inquired into.

4. JUDGMENT (§ 324) — AMENDMENT — NUNC PRO TUNC.

Where the circuit court, on dismissing a case appealed from a justice of the peace, wrote in its docket, "Dis. by deft. App'l," the entry was insufficient to make it appear of record that the former order of dismissal was incorrect, and it was error to amend the entry, nunc pro tunc, without notice to the adverse party, so as to make it appear that the appeal, and not the cause, was dismissed.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action commenced before a justice of the peace by the Pulitzer Publishing Company against S. B. Allen, and appealed by defendant to the circuit court. From an order amending a judgment of the circuit court, dismissing the cause, T. O. Wengler, surety on the appeal bond, appeals. Reversed and remanded.

Blevins & Jamison, for appellant. Gardner, Morgan & Wood, for respondent.

GOODE, J.

Respondent brought suit on an account for $282.40 against appellant Allen before a justice of the peace. Allen filed a counterclaim for $312.80. The justice rendered judgment in favor of respondent against Allen in the sum of $282.40, and found the issues for respondent on the counterclaim. Allen took an appeal from the justice's court to the circuit court, and executed an appeal bond, signed by appellant as surety. The appeal was perfected, and the cause continued, from time to time, until the February term, 1906. A judgment entry appears of record in the circuit court under date of March 12, 1906, at the February term, as follows: "Upon motion of defendant (appellant) by attorney, it is ordered by the court that this cause be, and the same is hereby, dismissed at the cost of defendant and T. O. Wengler, as surety on the appeal bond herein, and that execution issue." At a subsequent term, and on May 15, 1907, respondent filed a motion in the circuit court to have the aforesaid entry corrected by an order nunc pro tune, so as to show the appeal was dismissed instead of the cause. Allen's attorney Haas and the surety Wengler, who is appellant here, were notified of the application for a nunc pro tunc order. Mr. Haas, on whom, as attorney for Allen, notice of the application for an order nunc pro tunc to correct the judgment entry had been served, testified he represented Allen in the suit, but that his relation terminated with the original entry, and he had not since seen Allen or been employed by him. Thereupon respondent's motion for an entry pro tunc was overruled, but a motion for rehearing was granted, it seems; for on June 28th, and during the term at which the motion had been overruled, the court entered an order correcting said original entry to read as follows: "On motion of the defendant (appellant) by attorney, it is ordered that this appeal be, and the same is hereby, dismissed at the cost of the defendant and T. O. Wengler, surety on the appeal bond herein, and that execution issue." Wengler excepted to this action of the court, and brought the cause here by appeal.

The only evidence on which the court relied in making the nunc pro tunc order was an entry on the judge's docket by the judge who sat when the order of dismissal was given. The form in which the minute appears on the docket is important and will be shown:

                   Pulitzer Publishing Co.}
                           vs.            >   37623, Appeal J. C
                   S. B. Allen            }
                     O. C. Phillips, H. Haas. Dis. by deft, App'l
                

It is conceded no notice was given to defendant, Allen, since the notice to the lawyer who had been his attorney in the cause was ineffective; it appearing the attorney's employment ceased when judgment was given. Swift v. Allen, 55 Ill. 303. As Wengler was held liable as surety on the appeal bond, he would have a right of action over against his principal, Allen, in case he discharged the liability; hence was interested in the judgment, and, as the entry originally read, was released from liability on his bond because the cause of action appeared to be dismissed. As amended, the order of dismissal left the judgment of the justice intact, and probably laid Wengler liable for breach of a stipulation in the appeal bond to diligently prosecute the appeal. As to Allen, the amendment entirely changed the judgment of the circuit court in a substantial form, because the amended order of said court left the judgment of the justice in force; whereas, according to the original entry, the cause of action was dismissed. It follows the amendment cannot be treated as one which merely corrected in respect of form, the judgment originally entered, even though the error was clerical and not judicial. In this, and perhaps most, jurisdictions a court, by an order nunc pro tunc, may correct an entry of judgment at a term subsequent, if, by mistake of the clerk, the original entry does not express the judgment actually rendered; but in this state, as in many others, such an amendment can be made only on information furnished by the record or files in the case. In other words, the amendment must be based on matter of record, and not on extrinsic evidence. Hyde v. Curling, 10 Mo. 359, 363; Gibson v. Chouteau's Heirs, 45 Mo. 171, 100 Am. Dec. 366; Gamble v. Daugherty, 71 Mo. 599; Missouri, etc., Ry. v. Holschlag, 144 Mo. 253, 45 S. W. 1101, 66 Am. St. Rep. 417. Our courts accept as record evidence which will support a nunc pro tunc amendment of a judgment entry, a minute written by the judge on his docket. Evans v. Fisher, 26 Mo. App. 546; Fletcher v. Coombs, 58 Mo. 430; Robertson v. Neal, 60 Mo. 579; Gamble v. Daugherty, 71 Mo. 599; Mo., etc., Ry. v. Holschlag, 144 Mo. 253, 45 S. W. 1101, 66 Am. St. Rep. 417. We are admonished in well-considered opinions to administer this character of relief with caution, for it affords opportunity to alter judgments previously given, under the guise of correcting clerical misprisions, and these alterations may work hardship. Odell v. Reynolds, 70 Fed. 656, 17 C. C. A. 317. It is the general rule they cannot be made, except on notice to the opposite party, because with the close of the term (and, it would seem, in a matter like this, with the rendition of judgment) the jurisdiction of the court over the party is at an end. Mann v. Schroer, 50 Mo. 306; 1 Freeman, Judgments (4th Ed.) p. 96, § 70.

The present cause involves an amendment made at a later term without notice to the defendant, who is the party primarily affected by the alteration. Exceptions are allowed to the rule requiring notice as a condition on which such an amendment will be valid, and the question is whether the instance under review falls within an exception. The only one respondent argues it could fall within is this: Where it is manifest from a bare inspection of the record the clerk entered a judgment other than the one the court rendered, opinions have held an amendment to make the record express the true judgment given by the court may be ordered without notice. Emery v. Whitwell, 6 Mich. 474, and cases cited in ninth paragraph of brief for plaintiff in error in said...