Shepard v. Tinsley

• Citation: 129 S.W. 1049,149 Mo. App. 428
• Parties: SHEPARD v. TINSLEY et al.
• Decision Date: 07 July 1910
• Court: Missouri Court of Appeals

129 S.W. 1049

149 Mo. App. 428

SHEPARD v. TINSLEY et al.

Springfield Court of Appeals. Missouri.

July 7, 1910.

COURTS (§ 114) — RECORDS — ENTRIES NUNC PRO TUNC—PREREQUISITES—ENTRY OF APPEARANCE.

Nunc pro tunc record entry of plaintiff's appearance at a previous term was properly refused, where there was no memorandum or minute of the clerk or judge showing the appearance.

Appeal from Circuit Court, Pemiscot County; Henry C. Riley, Judge.

Action by C. G. Shepard against Ben Tinsley and others. From a judgment of the Circuit Court affirming a Justice's judgment for plaintiff, defendants appeal. Affirmed.

W. W. Corbett, for appellants. C. G. Shepard and A. L. Oliver, for respondent.

NIXON, P. J.

This case grew out of one of more importance involving the settlement of the affairs of a defunct partnership. This suit was begun by C. G. Shepard filing an action in replevin in a justice's court to obtain possession of certain of the partnership books. On October 24, 1905, the justice awarded possession of the books to plaintiff, and defendants appealed to the circuit court of Pemiscot county. On October 28, 1905, the justice filed his transcript, together with the original papers in the case, with the circuit clerk, and the case was set for trial at the November term, 1905, of said circuit court. However, the case was continued by the court until the February term, 1906, at which time the plaintiff, C. G. Shepard, filed a motion to affirm the judgment of the justice for the reason that no notice of appeal as required by the statute was given him by defendants, and stating that plaintiff had not entered his appearance in the circuit court. Defendants thereupon filed a motion reciting that on the first day of the November term, 1905, the plaintiff in person made application to the circuit court to allow him to enter his appearance, and that said application was granted, but that by inadvertence the said order was not placed on record, "and the defendants now move that the said order be made matter of record, and that the cause proceed to trial." The court proceeded to hear testimony in support of this motion. C. G. Shepard, being asked by the court whether he had entered his appearance as charged by defendants, answered: "If I did, I don't remember it; I don't recollect now if I did." A. L. Oliver, an attorney representing the plaintiff, was sworn, and he stated that he did not enter plaintiff's appearance. Defendants' attorney, W. W. Corbett, being sworn, stated that Shepard did call up the case and enter his appearance, and that the court directed the clerk to enter the plaintiff's appearance. Sam J. Corbett, another attorney, gave substantially the same evidence. Harrison P. Grier, one of the defendants, stated that plaintiff called up the case and said something about entering his appearance, and that the judge then turned and spoke to the clerk. The clerk was not sworn. This was all the evidence introduced. The court overruled defendants' motion and sustained plaintiff's motion to affirm the judgment of the justice. The defendants have appealed.

The purpose of defendants' motion in the circuit court was to secure an entry of record of an appearance made at a previous term of said court. In the case of Hyde v. Curling, 10 Mo., loc. cit. 363,...