Warren v. Drake, KCD

• Citation: 570 S.W.2d 803
• Decision Date: 28 August 1978
• Docket Number: No. KCD,KCD
• Parties: Louis J. WARREN, Ellen L. Warren, and Richard L. Chandler, Plaintiffs-Appellants, v. Robert S. DRAKE, Jr., Ted Roush, Ruth O. Roush, and Ted Roush, Jr., Defendants-Respondents. 29226.
• Court: Court of Appeal of Missouri (US)

Page 803

570 S.W.2d 803

Louis J. WARREN, Ellen L. Warren, and Richard L. Chandler Plaintiffs-Appellants, v. Robert S. DRAKE, Jr., Ted Roush, Ruth O. Roush, and Ted Roush, Jr., Defendants-Respondents.

No. KCD 29226.

Missouri Court of Appeals, Kansas City District.

Aug. 28, 1978.

John K. Weilert, J. D. Williamson, Jr., Independence, for plaintiffs-appellants.

Mark T. Kempton, Sedalia, for defendants-respondents.

Before SOMERVILLE, P. J., and DIXON and TURNAGE, JJ.

SOMERVILLE, Judge.

The roots of the action from which this appeal arose run deep. In April of 1975 plaintiffs (appellants) filed suit to set aside a trustee's sale of certain real property owned by them in Benton County ostensibly conducted under a power of sale conferred by a deed of trust. Defendants Ted and Ruth Roush (respondents), mortgagee-payees of a delinquent promissory note secured by the deed of trust on the real property and by a security agreement on certain personal property, filed an answer and a counterclaim and in the latter prayed for judicial foreclosure of the deed of trust and security agreement, sale of the real and personal property, extinguishment of plaintiffs' right of redemption, application of the proceeds of the judicial foreclosure sale in the order listed, and, in conclusion, for the amount of any deficiency that might remain owing to them after application and exhaustion of the proceeds of the sale.

Plaintiffs filed an answer to the counterclaim, and June 9, 1975, was set as the trial date for the issues joined in plaintiffs' petition and the counterclaim of defendants Ted and Ruth Roush. Plaintiffs failed to appear either in person or by counsel when the case was called on June 9, 1975. However, defendant Ted Roush appeared both in person and by counsel on said date, and the remaining defendants appeared by counsel. Defendants confessed judgment as to the relief prayed for by plaintiffs in their petition and then proceeded to offer evidence in support of their counterclaim, principally via the testimony of defendant Ted Roush. Prior to the introduction of any evidence in support of the counterclaim, counsel for defendants advised the court as follows: "The counterclaim, all we're asking, that the deed of trust be foreclosed, and that the equity redemption be extinguished, and the Court order the trustee to sell it." During the course of defendant Ted Roush's testimony he was asked the following question to which he gave the following answer:

"Q And you're asking the Court today for an Order directing the trustee to foreclose that and the security agreement and the deed of trust, and that the equity of redemption in the real and personal property be extinguished, and that the payment that after the property is sold, the payment be first placed at costs and expenses of this action, and the same of the real estate, and the personal property, and then, next, the payment of the insurance, taxes, and the penalty, and the interest thereon; that and third, that any balance be applied to the accrued interest and principal due on this note. Is that correct?

A That is correct."

Defendant Ted Roush concluded his testimony at this point and the trial judge then made the following announcement in open court: "Judgment for defendants ordering foreclosure and extinguishment and right of redemption, as per entry filed." Thereafter on June 9, 1975, according to the transcript, the following "entry" was made "upon the records of the Court in this cause": "Defendants (sic) appear and consent that trustees sale be set aside and trustees deed ordered cancelled. Hearing held on Counterclaim. Judgment for defendants ordering foreclosure and extinguishment of right of redemption as per entry filed." Also on June 9, 1975, a formal judgment was entered in favor of defendants Ted and Ruth Roush on their counterclaim. The decretal portion of the formal judgment "ordered, adjudged and decreed" foreclosure of the deed of trust and security agreement, sale of the real and personal property, extinguishment of plaintiffs' right of redemption, and application of the proceeds of the judicial foreclosure sale in the order listed. It contained no provision for and no mention was made of any deficiency judgment. The decretal portion of the judgment was preceded by a rather lengthy recital of findings of fact, among them being that $36,600.00 unpaid principal, $3,726.54 interest and $1,275.33 advanced for taxes was due and owing to defendants Ted and Ruth Roush.

On August 14, 1975, an "Execution to Foreclose Mortgage" was issued to the Sheriff of Benton County, Missouri, and pursuant thereto the real property described in the deed of trust was sold at public auction. Defendants Ted and Ruth Roush, having bid $29,000.00, were the successful bidders for the real property and the real property was conveyed to them by a sheriff's deed. It is unclear from the record as to the disposition made of the personal property covered by the security agreement. After the payment of all lawful expenses attendant the sheriff's sale of the real property, there remained due and owing to defendants Ted and Ruth Roush the sum and amount of $12,896.87.

On February 24, 1976, a "General Execution" was issued to the Sheriff of Benton County, Missouri, and pursuant thereto he levied execution upon and seized a boat belonging to plaintiff Richard L. Chandler. The boat was not included or described in the list of property set forth in the security agreement. Consequently, plaintiff Richard L. Chandler filed a "Motion to Quash Execution and Levy" which was sustained by the trial court.

On October 21, 1976, defendants Ted and Ruth Roush filed an "Application For Amendment of Judgment Nunc Pro Tunc" which was passed upon and granted by the trial court on November 19, 1976. So far as here pertinent, the decretal portion of the original judgment was amended to include a judgment in favor of defendants Ted and Ruth Roush for the amount of any deficiency that might remain owing to them after application and exhaustion of the proceeds of the sale of the collateral.

THe functional boundaries of nunc pro tunc orders are firmly established in this state. They lie to correct clerical omissions, mistakes or misprisions so as to make the record speak the truth by evidencing an act done or a judgment actually rendered at a prior time but not carried into or faithfully recorded in the record; they do not lie to correct judicial errors, mistakes or oversights, or to create a new record or to enter a judgment never made or one different from that actually rendered, albeit the judgment rendered was not the judgment the...