State v. Buckner

• Decision Date: 18 March 1918
• Docket Number: No. 12967.,12967.
• Citation: 203 S.W. 242
• Parties: STATE ex rel. AIKEN v. BUCKNER.
• Court: Missouri Court of Appeals

203 S.W. 242

STATE ex rel. AIKEN v.BUCKNER.

No. 12967.

Kansas City Court of Appeals. Missouri.

March 18, 1918.

Original proceeding in prohibition by the State, on the relation of W. H. Aiken, against Thomas B. Buckner. Preliminary writ made final.

Walsh & Aylward, of Kansas City, for appellant.Sebree, Conrad Sr Wendorff, of Kansas City, for respondent.

ELLISON, P. J.

Relator brought his action for damages against the Sydney Steel Scraper Company and Samuel B. Strother, administrator of the estate of Tomlinson, deceased.The respondent is judge of the circuit court for Jackson county, and the trial of the cause was had before him as such court, with the aid of a jury.At the conclusion of the evidence for plaintiffthe court gave a peremptory instruction to the jury to find a verdict for the defendantSydney Steel Scraper Company, and such verdict was thereupon returned.The case was dismissed by this relator as to Strother.Relator as plaintiff in that case appealed to this court, and we held the peremptory instruction to be error and reversed the judgment of the circuit court and remanded the cause for trial.The present controversy has arisen over the order of time at which relator dismissed his case as to Strother; he insists that he took that action before the peremptory instruction was given and verdict returned, while respondent claims that the dismissal was after the verdict was returned.The judgment entered on the record, as well as the clerk's minutes, support relator.But the defendantSydney Steel Scraper Company, as well as respondents, claimed that the entry of the judgment of dismissal in the record as having been rendered prior to the instruction and verdict was an error of the clerk, and that respondent's entries in his docket show the dismissal was subsequent to the instructions and verdict.So the defendantSydney Steel Scraper Company after the judgment of reversal rendered in this court and after the mandate from this court had been issued and had been received in the circuit court, filed a motion in the circuit court asking for an order nunc pro tune changing or transposing the judgments, as shown in the record, so that the judgment of dismissal as to Strother would appear to have been rendered after the verdict and judgment in favor of the Sydney Steel Scraper Company.

The judgment entered upon the record by the clerk of a court of record is presumed to be the judgment rendered by the court, and such presumption cannot be qualified by the recollection of the judge or witnesses.It can only be overcome by some proper paper in the cause or by some record, or quasi record, such as the clerk's minute book, or entries in the judge's docket.M., K. & B. Ry. v. Holschlag, 144 Mo. 253, 257, 45 S. W. 1101, 66 Am. St. Rep. 417;Belkin v. Rhodes, 76 Mo. 643, 652;Burns v. Sullivan, 90 Mo. App. 1, 4;Bohm Bros. v. Stivers, 75 Mo. App. 291.And mere silence of the judge's docket or of the clerk's minutes cannot control proper affirmative recitations in the judgment entered on the record.Monk v. Railroad, 166 Mo. App. 692, 707, 708, 150 S. W. 1083, 1087.

We will apply these settled rules of law to the facts as shown by the record in the cause as it stood when it was proposed to make the nunc pro tune order.The clerk's minutes are as follows:

"76663—Akin v. Sidney Steel Scraper Co. et al.By leave of court, plaintiff amends petition by reducing the amount sued for to $7,500.DefendantSidney Steel Scraper Company excepts.Plaintiff dismisses as to Samuel B. Strother, administrator of estate of J. C. Tomlinson, deceased.At close of plaintiff's evidence, under instructions given by the court, the jury returned the following verdict, to wit: `We, the jury find the issues for the defendantSidney Steel Scraper Company.H. A. Kelly, Foreman.'Judgment accordingly."

The judgment entered at large in the record reads as follows:

"Now on this day again come the parties in this cause, and also comes the jury herein, and now plaintiff, by leave of court, amends his petition by reducing the amount sued for to seventy-five hundred dollars, to which action in permitting said defendantSidney Steel Scraper Company excepts.And now plaintiff dismisses this cause as to defendantSamuel B. Strother, administrator of the estate of J. C. Tomlinson, deceased.

"Wherefore, it is ordered and adjudged by the court that this cause be, and the same is hereby dismissed as...