Richey v. Meter Investments, Inc., WD35355
| Decision Date | 30 October 1984 |
| Docket Number | No. WD35355,WD35355 |
| Citation | 680 S.W.2d 381 |
| Parties | John M. RICHEY and Helen P. Richey, Plaintiffs-Appellants, v. METER INVESTMENTS, INC., Defendant-Respondent. |
| Court | Missouri Court of Appeals |
D.W. Sherman, Jr., Lexington, for plaintiffs-appellants.
R. Britt Carlson, Kansas City, for defendant-respondent.
Before KENNEDY, P.J., and NUGENT and BERREY, JJ.
Appellants filed suit in Lafayette County for specific performance and damages. On May 6, 1981, the case, CV179-115 CC, was called up by the court and was dismissed for want of prosecution.
Subsequently on August 17, 1981, the trial court on its own motion, without notice and hearing, set aside its May 6 order.
On August 27, 1981, respondent filed its objections and on September 1, 1981, the court sustained the respondent's objections.
Subsequently on September 11, 1981, appellants refiled a Petition for Specific Performance and for Damages and said case was assigned number CV181-247 CC. Following service respondent filed a Motion for Judgment on the Pleadings. The matter was set for December 7, 1981.
The docket entry record of December 7, 1981, reads, The Honorable William T. Bellamy presided.
Thereafter an amended petition was filed as well as respondent's answer and request for admissions. Depositions were filed and on July 19, 1982, respondent filed a Motion for Change of Judge and Change of Venue. The case was eventually reassigned and transferred to Johnson County, Missouri, the Honorable Robert G. Russell, presiding, and given case number CV483-266 CC. The respondent renewed his Motion to Dismiss on September 16, 1983, and on October 3, 1983, with attorneys present and arguments heard, the trial court sustained respondent's motion. The trial court cited the prior dismissal of CV179-115 CC, holding it was with prejudice and a bar to the instant case. Although there was no motion for a nunc pro tunc order filed nor was there a formal prepared nunc pro tunc order executed by the trial judge in Lafayette County, appellants' attorney urges us to accept the trial court's remarks at the hearing of December 7, 1981, as being nunc pro tunc in nature and preserving his law suit by announcing that in his circuit, Rule 67.03 notwithstanding, all dismissals were without prejudice unless noted to the contrary.
Appellants' exhibit G notes that "CV179 115 CC John Richey, et al v. Meter Investments, Inc. was dismissed for w/p May 6, '81." This is on a form entitled "Setting Letter" showing copies were sent to the attorneys for both appellants and respondent. Attorney for appellants alleges that the Circuit Clerk of Lafayette County did send the Supreme Court notice that the case was dismissed without prejudice. At the December 7, 1981, hearing with attorneys present and in open court, Judge Bellamy stated:
I am going to say this, that for a number of years in this circuit--and I understand that the rules of the Supreme Court take precedence over the rules of the circuit, .... The fact that the case did not say with prejudice under the rules of the Supreme Court may make Mr. Sherman and me look awfully bad here, but there was never any intention that it be dismissed with prejudice; I will say that.
....
Mr. Sherman has cited, but I'm going to say that the intention of the Court was never to dismiss the case with prejudice. It just was never so intended. And, in fact, the clerk did the right thing when she notified the Supreme Court that the dismissal was without prejudice ....
....
I'm going to say that this particular case was never--it was never intended that this case be dismissed with prejudice....
....
All I can do is say that it was never intended to be dismissed--
....
--with prejudice....
Judicial mistakes may not be corrected by nunc pro tunc proceedings. First National Bank of Collinsville v. Goldfarb, 527 S.W.2d 427, 430 (Mo.App.1975). Rendition of the judgment controls and is a judicial act; entering a judgment upon the record is a ministerial act. Allen v. Gibbons, 425 S.W.2d 243, 245-46 (Mo.App.1968).
Rule 67.03 reads, "... any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue or for failure to substitute a party for a decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify." (Emphasis added.) Rule 67.03 means that a dismissal [with prejudice] is a mechanism for terminating litigation rather than an adjudication of the merits or issues of the case. Denny v. Mathieu, 452 S.W.2d 114, 118 (Mo. banc 1970).
Appellants direct us to Fields v. Fields, 584 S.W.2d 163, 165 (Mo.App.1979) in which the court said, "An entry of judgment may be corrected to remedy a clerical error or mistake which resulted in an entry that did not actually reflect the judgment rendered." (Emphasis added.) Essentially this case stands for the proposition that a corrected entry may not be used to correct a judicial error, "even though the judgment rendered was not the judgment the judge intended." Id.
Appellants' Point I is denied.
Appellants next contend under Point II that Judge Russell acted outside his jurisdiction in overruling a previous decision made by another circuit judge.
Respondent cites Rule 74.02 as grounds for Judge Russell's action. "Every direction of ...
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