Wiggins v. Perry

• Decision Date: 17 September 1938
• Docket Number: 33582
• Citation: 119 S.W.2d 839,343 Mo. 40
• Parties: Ella L. Wiggins et al. v. Mary Lois Perry et al., Appellants
• Court: Missouri Supreme Court

119 S.W.2d 839

343 Mo. 40

Ella L. Wiggins et al. v. Mary Lois Perry et al., Appellants

No. 33582

Supreme Court of Missouri

September 17, 1938

Rehearing Denied November 23, 1937.

Motion to Transfer to Banc Denied December 14, 1937.

Motion to Modify Opinion and Recall Denied September 17, 1938.

Appeal from Circuit Court of City of St. Louis; Hon. James F Green, Judge; Opinion filed at September Term, 1936 November 12, 1936; motion for rehearing filed; motion overruled at September Term, 1937, November 23, 1937; motion to transfer to Court en Banc filed and overruled December 14 1937; motion to modify opinion and recall filed; motion overruled at September Term, 1938, September 17, 1938.

Affirmed.

Paul Bakewell, Jr., for appellants.

(1) On this second appeal this court will only review its decision on the first appeal and the judgment entered, to-wit, the decree as recorded. Booth v. Scott, 240 S.W. 217; Barrett v. Stoddard County, 272 Mo. 133; Stump v. Hornback, 109 Mo. 277. (2) The opinion of this court was a part of its mandate, which is to be construed in the light of the opinion. Pickel v. Pickel, 251 Mo. 208; Keaton v. Jorndt, 259 Mo. 190; Gulf Refining Co. v. United States, 269 U.S. 135; Metropolitan Co. v. Kaw District, 223 U.S. 523. (3) This court has inherent power to correct the record so as to make it speak the truth. Burton v. Burton, 288 Mo. 531, 232 S.W. 476; Campbell v. Spotts, 331 Mo. 981, 55 S.W.2d 986; Clancy v. Luyties Realty Co., 321 Mo. 282, 10 S.W.2d 914; Henry County v. Salmon, 201 Mo. 151; Wight v. Nicholson, 134 U.S. 136. (4) A nunc pro tunc entry may be made at any time. No Statute of Limitation bars the right to have a court record speak the truth. State v. Jeffors, 64 Mo. 378; Farris v. Burchard, 262 Mo. 342; Gagnon v. United States, 193 U.S. 451. (5) The decision rendered by this court constitutes the judgment. The entry thereof is merely the ministerial act of the clerk. State ex rel. v. Henderson, 164 Mo. 359; State v. Cockrell, 280 Mo. 288, 217 S.W. 524; State v. Wear, 145 Mo. 192; Fontaine v. Hudson, 93 Mo. 62; K. C. Pump Co. v. Jones, 126 Mo.App. 536; Rogers v. Hill, 289 U.S. 582. (6) Being an equity case, this court heard it de novo on the first appeal. Therefore, this court reviewed every element of the judgment of the circuit court as that judgment was described to this court by counsel. Troll v. Spencer, 238 Mo. 93; King v. King, 223 Mo.App. 1085, 24 S.W.2d 704. (7) The words "heirs of the body," used in the decision of this court, mean only one thing: that the heirs of the body of each life tenant alive at the time of her death were to take estates in fee simple at the time of her death. Sec. 3110, R. S. 1929; Cox v. Jones, 229 Mo. 65; Nichols v. Robinson, 211 S.W. 15; Emmerson v. Hughes, 110 Mo. 631; Campbell v. Spotts, 331 Mo. 983.

Nagel, Kirby, Orrick & Shepley for respondents.

(1) The contention for appellants, that said memorandum was the judgment in the case, overlooks the fundamental rule that there can be only one final judgment in a case. R. S. 1929, sec. 1077, 2 Mo. Stat. Ann., p. 1376; Mt. Vernon Car Co. v. Hirsch Rolling Mill Co., 285 Mo. 699. A nunc pro tunc order would not issue to amend a void decree. Sproul v. Montieth, 66 Colo. 543; Johnson v. Ford, 92 Ga. 753; Wheeler v. Duke, 67 S.W. 911. (a) Judge Miller's memorandum shows on its face that he did not intend to be the decree in the case. (b) The memorandum bears additional internal evidence that it was not intended to be "the judgment" in the case. Mt. Vernon Car Co. v. Hirsch Rolling Mill Co., 285 Mo. 699. (c) The memorandum was not a judicial finding. State ex rel. Shartel v. Skinker, 324 Mo. 967. (2) This court has held that a judge's memorandum is not a paper required by law. It was optional with the judge whether to file it or not. It is not adequate to support a nunc pro tunc entry to amend the decree entered of record. St. Louis v. Rossi, 332 Mo. 501; St. Louis v. Senter Comm. Co., 335 Mo. 491; M. K. & T. Ry. v. Holschlag, 144 Mo. 256; Smith v. Travelers Protective Assn., 319 Mo. 1126. (3) There are additional persuasive reasons why Judge Miller's memorandum was inadequate to support appellants' motion. (a) There is a strong legal presumption that the judgment entered by the clerk upon the formal record is the judgment which was rendered by the court, and it not an error of the clerk. M. K. & T. Ry. v. Holschlag, 144 Mo. 256; Wooldridge v. Quinn, 70 Mo. 372; Belkin v. Rhodes, 76 Mo. 652. (b) This presumption can be overcome only by competent evidence proving with "a reasonable degree of absolute certainty" that the clerk did not enter the judgment that the court rendered and intended to be entered of record, and the nature of the intended judgment. Burns v. Sullivan, 90 Mo.App. 5. (c) A judgment or decree that was merely "erroneous" in law (a contention in support of the pending motion is that the decree as entered erred in its construction of the will and of Judge Miller's memorandum), cannot be corrected by a nunc pro tunc entry after the term has expired. State ex rel. Holtcamp v. Hartmann, 330 Mo. 394; Davison v. Davison, 207 Mo. 708; Bohm Bros. v. Stivers, 75 Mo.App. 296. (d) As to the kind of evidence necessary to support a motion for a nunc pro tunc order made after the term, we quote from the opinion in M. K. & T. Ry. v. Holschlag, 144 Mo. 256: "It is not disputed, nor can it be, that the settled law of this State is that entries nunc pro tunc can only be made upon evidence furnished by the 'papers and files in the cause, or something of record, or in the minute book or judge's docket' 'as a basis to amend by.' Gamble v. Daugherty, 71 Mo. 599." Gamble v. Daugherty, 71 Mo. 599; Young v. Young, 165 Mo. 630. (e) The submission of the case on which Judge Miller's memorandum rested was later set aside by the court, carrying the memorandum with it. (f) Even if Judge Franklin Miller's memorandum had not been swept away with the submission, it would not have afforded any basis for the requested nunc pro tunc entry, because the memorandum was consistent, not inconsistent, with the decree as entered, and with the will. (4) Appellants' brief errs in assuming and contending that this is "a second appeal," in the will construction case. "Errors must be assigned and shown before a reversal is warranted." Hiemenz v. Harper, 275 Mo. 383. (5) The contention for appellants that the pending motion may validly be based on a conflict or contradiction between the opinion of this court and the decree below, is wholly unsound. (a) The affirmance covered the entire decree, including the part that related to successive life estates in the two sisters, and the decree became res adjudicata. Donnell v. Wright, 147 Mo. 647; Stone v. Kansas City Co., 261 Mo. 78; St. Louis v. United Rys. Co., 263 Mo. 425; Consol. School Dist. v. Day, 328 Mo. 1105; Miller v. Belvy Oil Co., 248 F. 86. (6) The contention for appellants that said memorandum was the judgment in the case, overlooks the fundamental rule that there can be only one final judgment in a case. The statute so provides (R. S. 1929, sec. 1077, 2 Mo. Stat. Ann., p. 1376); and this court has so held, Mt. Vernon Car Co. v. Hirsch Rolling Mill Co., 285 Mo. 699. If the judge's memorandum had (as appellants contend), constituted "the judgment" in the case, then a decree based upon it would have been entirely superfluous. Yet appellants, by their motion, necessarily admit that the formal decree which they seek to amend constitutes the final judgment or decree. They cannot consistently seek to amend the decree, unless it be the final decree. Nor could they consistently seek to amend a void decree; a nunc pro tunc order would not be issued to enable them to do so, because the order would "fall with" the decree. Spraul v. Montieth, 66 Colo. 543; Johnson v. Ford, 92 Ga. 753; Wheeler v. Duke, 67 S.W. 911.

Bradley, C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

This appeal is from an order of the Circuit Court of St. Louis refusing to correct, nunc pro tunc, a judgment by said court. For opinion affirming the judgment in the original cause, see Wiggins et al. v. Perry et al. (Mo.), 271 S.W. 815. The original suit was to construe the will of John E. Liggett who died November 23, 1897, and the opinion referred to sets out the parties there concerned three of whom only are concerned here, viz.: Ella L. Wiggins, Mary Lois McIntosh (formerly Perry) and Elizabeth Liggett Kennard (formerly Scudder). Testator left surviving him three daughters, Cora B. Fowler, Dolly L. Kilpatrick and Ella L. Wiggins. Cora B. Fowler died without issue July 19, 1928, and Dolly L. Kilpatrick died August 10, 1928, leaving a daughter, now Mary Lois McIntosh, and a granddaughter, now Elizabeth Liggett Kennard, who is the daughter of a deceased daughter of Dolly L. Kilpatrick. Mary Lois McIntosh and Elizabeth Liggett Kennard are the movants in the motion for the nunc pro tunc order, and Ella L. Wiggins opposes. We shall refer hereinafter to the proponents of the motion as the movants and to Ella L. Wiggins as respondent for the most part.

In the will construction suit, respondent and her two sisters, Cora B. Fowler and Dolly L. Kilpatrick, contended that by the terms of the will they took the fee in the property devised to them, while on the other hand, it was contended that the three daughters took only a life estate. In the first clause of his will, testator directed the payment of debts, funeral and administration expenses. In the second clause he made certain bequests to his wife (who died May 15, 1909) in lieu of statutory allowances. In the third clause he devised to his three sons-in-law certain stock in the Liggett & Myers Tobacco Company and of the Liggett Realty Company, and all his real estate and...