Wiseman v. Lehmann, 33727

• Decision Date: 23 February 1971
• Docket Number: No. 33727,33727
• Citation: 464 S.W.2d 539
• Parties: Jacqueline Dorothy WISEMAN and Jackie L. Wiseman, Plaintiffs-Respondents, v. John LEHMANN and Wilma Lehmann, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 539

464 S.W.2d 539

Jacqueline Dorothy WISEMAN and Jackie L. Wiseman, Plaintiffs-Respondents, v. John LEHMANN and Wilma Lehmann, Defendants-Appellants.

No. 33727.

St. Louis Court of Appeals, Missouri.

Feb. 23, 1971.

Limbaugh, Limbaugh & Russell Stephen N. Limbaugh, Cape Girardeau, for defendants-appellants.

Jackson, Thomasson, Dickerson & Gilbert, Donald P. Thomasson, and Paul Gilbert, Oliver, Oliver & Jones, John Oliver, Cape Girardeau, for plaintiffs-respondents.

SMITH, Commissioner.

Defendants appeal from a judgment against them in a court-tried case awarding damages for injuries sustained by plaintiff Jacqueline Wiseman, who allegedly ran her automobile off the road attempting to avoid defendants' cow. Plaintiff claims the cow was negligently permitted to run at large in violation of the stock laws of Bollinger County and the State of Missouri. The major problem to be resolved is which of three successive judgments entered by the trial court in the case is the judgment to be reviewed. Defendants have not here urged any error in the trial, nor in the sufficiency of the evidence to support the findings of liability and damages. No review of the evidence is necessary.

The first amended petition in this case was in two counts. Count I pertained solely to Jacqueline Wiseman as plaintiff and sought recovery for her personal injuries sustained in the accident. Count II pertained solely to her husband, Jackie L. Wiseman, and sought recovery for his injuries suffered in the accident as well as his medical expenditures for him and his wife. On the morning of trial plaintiffs amended their petition by interlineation by adding to Count I a claim for property damage to the automobile and the medical expenses of Jacqueline Wiseman. After the amendment had been allowed plaintiffs dismissed Count II--'the husband's claim'--and the court made its order 'Count II dismissed.' In this posture the trial commenced on November 18, 1969. At the conclusion of the trial the matter was taken under advisement by the court.

On December 5, 1969, the circuit clerk wrote a letter to defendant-husband (who had represented himself at the trial), copy to plaintiffs' attorney, as follows: 'This is to inform you that on the 4th day of December, 1969, a Judgment was entered against you and Mrs. Lehmann in the amount of $4,400.00, in connection with the above case.' No entry of judgment appears in the record on December 4 or 5.

On December 9, 1969, the following entry was made in the records of the court: 'Now on this day the Court having been fully briefed and being fully advised in the premises hereby finds for the plaintiff on Count I for $2,000.00 and on Count II for $1,400.00 against John Lehmann and Wilma Lehmann.' No notice to the parties of the entry of this judgment appears in the record.

On December 10, 1969, defendants filed what was entitled a 'Notice of Appeal,' and was a letter to the Judge requesting an appeal for the 'purpose of calling in witnesses : To substantiate the defendants testamony; To call in a witness from the United States Air Force; To produce new testamony; To show that the charges are falsely placed against the defendant.' The letter closed with a statement that the 'defendant has no objections against being heard by Hon. W. Osler Statler as he is already acquainted with the case. * * *'

The circuit clerk dutifully forwarded this document to this court which returned it as 'not a proper Notice of Appeal.' On December 19, 1969, defendants filed a proper notice appealing from the 'judgment entered in this action on the 9th day of December, 1969.' Plaintiff filed no notice of appeal. Transcript was duly ordered and on March 2, 1970, defendants were granted additional time to file a transcript by the circuit court.

On March 9, 1970, the following order was entered of record in the trial court:

'Now on this 9th day of March, 1970 the Court finding that perhaps due to its own inadvertence that the Judgment of December 9, 1969 is subject to misunderstanding hereby corrects that order to read as follows, which is the original intention of the Court:

'The Court having been duly advised in the premises hereby finds for the Plaintiff and against both defendants in the amount of $3000.00 (Three Thousand Dollars) on Count I and for $1400 on Count II.'

On March 24, 1970, the following order was entered by the trial court:

'Now on this 24th day of March, 1970, the Court hereby corrects the previous Orders entered on December 9, 1969, and March 9, 1970, so that the correct Order reads as follows:

'The Court having been duly advised in the premises hereby finds for the Plaintiffs and against both Defendants in the sum of Four Thousand Four Hundred Dollars ($4,400.00) on Count I.'

The record does not contain any motion requesting the orders of March 9 and March 24, and we must conclude they were entered by the court on its own motion.

Not surprisingly, in view of the state of the record, each party has a different postition on the validity of the judgments and one or more alternative positions. Defendants claim that all three judgments are void or alternatively, that only that part of the December 9 order relating to Count I is valid. Plaintiff claims validity (1) in the March 24 order or (2) in the March 9 order or (3) in the liability portion of the December 9 judgment (requesting us to determine the damages or remand for that purpose) or (4) in the December 9 judgment. Because the March orders were entered well beyond the 30 days after entry of judgment during which the trial court has control of its judgments (Supreme Court Rule 75.01 V.A.M.R.) plaintiff seeks to uphold these orders as nunc pro tunc corrections of the December judgment. We examine that contention first.

Any entry of judgment carries with it a presumption that it correctly states the judgment actually rendered. Aronberg v. Aronberg, Mo.App., 316 S.W.2d 675(7). Such an entry of judgment may be corrected by a nunc pro tunc (now for then) order to correct a clerical mistake in entering such judgment. Aronberg v. Aronberg, supra, (5, 6). The burden is upon respondent here to show that the judgment actually rendered is different from the judgment entered. City of Ferguson v. Nelson, Mo., 438 S.W.2d 249(10--13). In order for a nunc pro tunc correction to be valid it must be supported by some writing in the record which establishes that the judgment entered is not in fact the judgment rendered. City of Ferguson v. Nelson, Mo., 438 S.W.2d 249, (5); Aronberg v Aronberg, supra (8). A nunc pro tunc order cannot be employed to correct a judicial error, to change a judgment rendered to reflect the true intention of the court, nor to create a different judgment than that actually rendered. City of Ferguson v. Nelson, supra, (3, 4); Aronberg v. Aronberg, supra, (5, 6); Farrell v. DeClue, Mo.App., 365 S.W.2d 68(2, 3). Plaintiff points to the December 5 letter of the clerk as the written evidence necessary to establish that the March orders were merely nunc pro tunc corrections of a judgment rendered on December 4 and entered on December 9.

The order of March 9, 1970, does not indicate that it was made to correct a clerical error but indicates rather that it was made to reflect the original intention of the court which was, 'due to its own inadvertence * * * subject to misunderstanding * * *' There was nothing to be misunderstood about the December 9 judgment. The court's order of March 9 on its face demonstrates that it was an attempt to correct a judicial mistake. It reflects the court's intention to render a different judgment than that actually rendered. Such is not the province of a nunc pro tunc order. While it is true that the clerk's letter and the judgment entry are inconsistent, that does not establish that any clerical error was made in the entry of December 9, particularly in veiw of the language of the March 9 order which indicates judicial not clerical...