Wand v. Ryan

• Citation: 65 S.W. 1025,166 Mo. 646
• Parties: WAND v. RYAN, Judge, et al.
• Decision Date: 21 December 1901
• Court: United States State Supreme Court of Missouri

65 S.W. 1025

166 Mo. 646

WAND v. RYAN, Judge, et al.

Supreme Court of Missouri.

December 21, 1901.

JUDGMENTS — MISTAKE — SATISFACTION — CORRECTION NUNC PRO TUNC — JURISDICTION — PROHIBITION — APPEAL — SUPERSEDEAS — NECESSITY.

1. Rev. St. 1889, § 869, provides that, in every action for the penal sum for the nonperformance of any covenant or written agreement, judgment shall be rendered for the penalty of the bond or for the penal sum forfeited, as in other actions. Section 871 provides that the judgment shall remain as a security for any damages that may be thereafter sustained by the further breach of the bond. Judgment in such an action was for the penalty of the bond, and for the amount of the admitted breaches and interest, to which the clerk, by misprision, added that it should be satisfied on the payment of the amount of the admitted breaches. Held, that the court rendering such judgment had jurisdiction at a subsequent term, on notice to the defendant therein, to correct such judgment nunc pro tunc, so that it should not be satisfied by payment of the amount of the breach.

2. The court had jurisdiction to set aside and correct, nunc pro tunc, an entry of satisfaction of the judgment.

3. Where a circuit court had jurisdiction to correct a judgment nunc pro tunc, and set aside and correct nunc pro tunc an entry of satisfaction, prohibition will not lie to restrain the court from taking further proceedings in the cause, for any errors on the hearing can be cured on the appeal from the judgment nunc pro tunc.

4. Where, on appeal from a judgment granting a nunc pro tunc correction of a judgment and satisfaction thereof, no bond was filed, and no supersedeas obtained or asked for, further steps taken to procure execution by scire facias were within the jurisdiction of the court, and its further action in the premises should not be prohibited.

In banc. Application for a writ of prohibition by Thomas Wand against O'Neill Ryan and another. Denied.

This is an original proceeding in this court by plaintiff to obtain a writ of prohibition absolute against Hon. O'Neill Ryan, one of the judges of the circuit court of the city of St. Louis, to restrain and prohibit him from taking further cognizance of a certain cause pending in his court wherein Elizabeth J. Burnside, his codefendant herein, is plaintiff, and Thomas Wand is defendant. A rule to show cause why said writ should not issue was granted by one of the judges of this court in vacation on July 1, 1901, returnable to the first day of this term, and in the meantime to refrain from all further action in the premises until the further order of this court. To this rule Judge Ryan and Mrs. Burnside on the first day of this term made their joint return, and prayed that said provisional writ should not be made permanent. And afterwards, on the 12th day of October, 1901, the plaintiff moved this court for judgment notwithstanding said return. The return of Judge Ryan and plaintiff's motion for judgment notwithstanding present the questions for our consideration. If the facts stated in the return show the circuit court had jurisdiction of the class of cases in which it was proceeding, and had not exceeded that jurisdiction, even though it might have committed some reversible error, then prohibition should not be awarded. It is a fundamental principle that this writ is not allowed to usurp the functions of an appeal, writ of error, or certiorari. State v. Lewis, 76 Mo. 376; State v. Thayer, 80 Mo. 436. The motion for judgment upon the return must be held to admit all the facts properly pleaded. State v. Elkin, 130 Mo. 103, 30 S. W. 333, 31 S. W. 1037.

The return states the following facts: At the June term, 1894, of the circuit court of the city of St. Louis, Elizabeth J. Burnside, one of the defendants in this proceeding, obtained a decree of divorce from her then husband, James Burnside, with an allowance of alimony, consisting of furniture and the occupancy of a house, and $50 per month for the support of herself and four minor children. By her motion, the same having been duly served on said James Burnside, she asked that security be required or the alimony be made a lien on his real estate, in conformity with sections 4505, 4506, Rev. St. 1889, then in force. Thereupon the said James Burnside appeared, and elected to give security, and the court so ordered, and said James Burnside, in obedience to said order, made, executed, and delivered his certain bond in the penal sum of $6,000, with Thomas Wand, the plaintiff herein, as his surety, for the payment of which they bound themselves, their heirs, executors, and administrators, jointly and severally, upon the condition, however, "that if the said James Burnside should well and truly pay unto the said Elizabeth J. Burnside the said monthly allowance of fifty dollars a month, mentioned in said order of allowance of March 29, 1895, in accordance with the terms and provisions of the said decree of June 5, 1894, then said bond should be null and void; otherwise to remain in full force and effect." Thereafter said James Burnside made default in the payment of said alimony, and execution was issued against him, which was returned nulla bona. Thereupon Elizabeth J. Burnside brought suit against Thomas Wand, the plaintiff herein, for breaches of said bond, aggregating $365, returnable to the October term, 1897, of the circuit court of the city of St. Louis. At the trial the counsel of Thomas Wand, the plaintiff herein, conceded the breaches, but contested the legality of the bond, and judgment was awarded for the penalty of the bond, $6,000, and for $365, the admitted breaches, and interest, aggregating $384.50, and for costs. The clerk's minutes on the file papers show: "1898, April 20th. $6,000, penalty of bond; damages, $384.50." In spreading this judgment upon his record, the clerk, by misprision, added the words, "To be satisfied upon the payment of the sum of three hundred and eighty-four and 50/100 dollars damages." Nine days later, and on April 29, 1898, Judge Chester H. Krum, who was counsel for Mr. Wand, the plaintiff herein, not having noticed the handing down of the judgment, asked to have it set aside, and it was so ordered, and re-entered as of the 29th day of April, 1898, as follows: "On motion of plaintiff by attorney, it is ordered by the court that the judgment entered herein on the 20th day of April, 1898, be, and the same is hereby, set aside, and re-entered as of this date." Then followed the judgment in the same form as already noted, with the recital that "the sum of $6,000, the penalty of the bond, should be satisfied by or upon the payment of the sum of $384.50, with costs and charges in this behalf expended." The object of Judge Krum in having this judgment set aside was to enable him to file his motion for new trial, and take his appeal, which he did at once for Mr. Wand, and gave an appeal bond in the penal sum of $780, and recited a judgment for $384.50. Mr. Thomas J. Rowe was surety on this appeal bond for Mr. Wand. The judgment was affirmed by the St. Louis court of appeals in 77 Mo. App. 382. On December 29, 1898, Mr. Thomas J. Rowe, the surety for Mr. Wand on his appeal bond to the court of appeals, brought the attorney for Mrs. Burnside $425.45 in currency, paid it to him, and remarked, "This clears me," and requested Mr. Gilliam to satisfy the judgment. On January 3, 1899, Mr. Gilliam, as attorney for Mrs. Burnside, acknowledged satisfaction of the judgment, but never intended to release anything but the $384.50 judgment recited in the bond on which Mr. Rowe was surety. On January 7, 1899, Burnside continuing to default in payment of the alimony, Mr. Gilliam began a new suit for Mrs. Burnside against Mr. Wand for defaults in alimony at $50 per month from October 1, 1897, to January 1, 1899, in all $800, with interest thereon from the date...