State v. Goodrich

• Decision Date: 06 November 1911
• Parties: STATE ex rel. SHERIDAN PUB. CO. v. GOODRICH, Judge.
• Court: Missouri Court of Appeals

140 S.W. 629

159 Mo. App. 422

STATE ex rel. SHERIDAN PUB. CO. v. GOODRICH, Judge.

Kansas City Court of Appeals. Missouri.

November 6, 1911.

1. JUDGMENT (§ 570)—DISMISSAL FOR WANT OF PROSECUTION—EFFECT—"DISMISS."

While a dismissal for want of prosecution terminates a suit, it does not end the controversy; it being in effect a final judgment for defendant, but not precluding plaintiff from bringing new suit for the same cause (citing 3 Words and Phrases, 2105).

2. JUDGMENT (§ 342)—SETTING ASIDE—TIME.

A judgment, dismissing an action for want of prosecution, if not set aside during the term at which it was made, becomes final, though the clerk fails to enter or record the judgment.

3. JUDGMENT (§ 273)—OMISSION TO RECORD OR ENTER—CORRECTION NUNC PRO TUNC.

Omission by a clerk to record or enter a judgment of dismissal for want of prosecution can be corrected at a subsequent term by a nunc pro tunc order.

4. JUDGMENT (§ 270)—ENTRY—SUFFICIENCY.

After the term at which a judgment is rendered, the court can speak only by its records, and, though a judgment was actually pronounced, if it is not entered by the judge or clerk, it loses its vitality.

5. JUDGMENT (§ 315) — AMENDMENT — EVIDENCE.

While a judge's minutes are not the memorial of a judgment, they constitute legal evidence of what was adjudged, and as such may serve as the basis for correcting errors of the clerk.

6. PROHIBITION (§ 29) — RECORDS — CORRECTIONS NUNC PRO TUNC—REVIEW.

On application for writ of prohibition against a trial judge, the Court of Appeals will not disturb a finding of the trial judge on conflicting evidence that a suit was not dismissed for want of prosecution, as he erroneously indicated by his minutes.

Application by the State, on relation of Sheridan Publishing Company, for writ of prohibition against James E. Goodrich, Judge of the Assignment Division of the Circuit Court of Jackson County, Missouri, at Kansas City. Writ denied.

Johnson & Lucas, for relator. Jay Read and Omar E. Robinson, for respondent.

JOHNSON, J.

This is an original proceeding for a writ of prohibition against the judge of the assignment division of the circuit court of Jackson county. The facts are undisputed and may be stated as follows:

The Graham Paper Company brought an action at law against the Sheridan Publishing Company (the present relator) in the circuit court of Jackson county. An answer was filed, and the trial of the cause was set for May 10, 1910. The cause was not tried on that date, and no entry relating to its disposition was made on any of the records kept by the clerk of the court. The honorable T. J. Seehorn was judge of the assignment division at that time, and on the docket kept by him the words "Dis. for want of pros." appear opposite the title of the cause. No judgment of dismissal was entered of record, and the cause was reassigned for trial on March 23, 1911, before the honorable James H. Slover, one of the judges of the court. On that date the relator appeared, and contended that the cause was not for trial, since it had been dismissed for want of prosecution. Thereupon Judge Slover returned it to the assignment...