Witten v. Robison

• Decision Date: 13 June 1888
• Parties: W. WIRT WITTEN, Respondent, v. JAMES H. ROBISON, Appellant.
• Court: Kansas Court of Appeals

31 Mo.App. 525

W. WIRT WITTEN, Respondent, v. JAMES H. ROBISON, Appellant.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Daviess Circuit Court, HON. CHAS. H. S. GOODMAN, Judge.

Affirmed.

Statement of case by the court.

This was an action for slander. The petition contained three counts. The court instructed the jury at the instance of the defendant to find for him as to the third count. The jury returned the following verdict, as shown by the records of the court:

" We the jury find for the plaintiff on the first count and assess the damages at one hundred dollars; we the jury find for the plaintiff on the second count and assess the damages at four hundred dollars." The judge's docket contains the following entry in relation to the case: " Jury verdict for plaintiff for five hundred dollars."

The trial was had at the October term, 1883. At the same term, in due time, the defendant filed motions for a new trial and in arrest of judgment, both of which were denied. He also filed his affidavit and bond for appeal, and his bill of exceptions. The appeal was granted, and the transcript of the record in the case was in due time filed in this court. No judgment, however, was entered in the case in the circuit court, and the defendant having discovered said fact dismissed the appeal taken by him to this court

The plaintiff, on the twelfth day of February, 1884, filed a motion in the circuit court in the case asking for a judgment nunc pro tunc, but withdrew it on the same day.

Afterwards on February 9, 1887, he filed in the circuit court in this case the following motion for a judgment nunc pro tunc and notice thereof:

" Comes now the plaintiff, and moves the court to make and enter an order amending its records in this cause nunc pro tunc, so as to make it conform to the judgment and decree of this court, made at the trial of this cause at the October term, 1883, for the reasons following:

1. Because at the October term of this court, 1883, the plaintiff herein recovered judgment for the sum of five hundred dollars against the said defendant, James H. Robison and the clerk failed to enter or spread said judgment on the record.

2. That the term of the clerk who kept the minutes of the court at said October term, 1883, has expired; we, therefore, ask the court to order the present clerk to enter the said judgment nunc pro tunc that the former clerk should have entered."

The notice is as follows:

" You are hereby notified that at the February term 1887, of the circuit court of the county of Daviess and state of Missouri, to be begun and held on the first Monday of February, 1887, at the courthouse in the town of Gallatin, in said Daviess county, and on the first day of said term, or as soon thereafter as counsel can be heard, I, W. Wirt Witten will file and ask the consideration of a motion asking the court to make and enter of record an order nunc pro tunc, amending the record in the above-entitled cause, so as to make it conform to the order of said court, made in said cause at the October term thereof, 1883, as the same appears in the minutes kept by the clerk and judge of the proceedings of said October term, 1883, which proposed amendment is to have the clerk enter of record a judgment herein for the sum of five hundred dollars, obtained by the plaintiff at said October term, 1883, and which said clerk failed and neglected to enter of record at that time."

The motion coming on for hearing, the defendant objected to the hearing thereof for the following reasons:

" Because said motion and notice are too indefinite and uncertain, and so failed to state what the amendment was as asked, and what was intended to be amended; that defendant had no notice of what the plaintiff asked for."

The objections were overruled and the hearing of the motion was proceeded with. The facts heretofore stated by us with reference to the verdict of the jury; the motions for new trial and in arrest of judgment; affidavit and bond for appeal, and allowance of appeal; and the bill of exceptions, were all made to appear from the records of the circuit court.

The former motion for a judgment nunc pro tunc, and its withdrawal, were also shown. And the following admission was made by the defendant: " It was here admitted by the defendant that the appeal heretofore taken in this cause had been dismissed by defendant in the appellate court on account of there being no final judgment in said cause, the mandate dismissing same being now on file in this court."

This was all the evidence.

The court rendered judgment on said motion in favor of plaintiff, and directed the clerk to enter, as having been entered at the October term, 1883, a judgment in the case in favor of the plaintiff in accordance with the verdict returned by the jury.

The defendant duly excepted to this action of the court, and filed his motions for new trial and in arrest of judgment. The motions being overruled, the defendant has in due form brought the case here.

ALLEN H. VORIES, for the appellant.

I. The court erred in rendering the judgment nunc pro tunc. The notice given by plaintiff to defendant, and the motion filed for said judgment, failed to set forth the respect in which the record was defective, and suggest the amendment with which he proposed to cure the defect. Weed v. Weed, 25 Conn. 337; Means v. Means, 42 Ill. 50; Hill v. Bower, 5 Wis. 386; Freeman on Judgments, sec. 72. The court erred in admitting any evidence on the part of plaintiff on his motion to correct said judgment. The notice claimed, " to make the record," " to conform to the minutes kept by the clerk and judge of the proceedings of said October term, 1883," when the proof offered was entirely and wholly different.

II. There was no record to amend by, made by either the judge or clerk of the court. When the court omits to render a judgment which it ought to have rendered, it has no power at a subsequent term to render it nunc pro tunc. The failure of the court is not a clerical misprision, and the record can be amended only by matter of record. Freeman on Judgments, secs. 70, 71; Hyde v. Curling, 10 Mo. 359; Saxton v. Smith, 50 Mo. 490; Dunn v. Raley, 58 Mo. 134; Barlow v. Steel, 65 Mo. 611; Koch v. Railroad, 77 Mo. 354; Smith, Adm'r, v. Steel, 81 Mo. 455; Blize v. Castlio, 8 Mo.App. 290.

III. The application of plaintiff was not made in time. The plaintiff had notice that no judgment had been rendered more than three years before this present application to amend was made, and filed a motion therefor, which he voluntarily withdrew. Applications to correct clerical errors must be made promptly after their discovery, and then only in furtherance of justice, and on such terms as to protect the rights of all. Freeman on Judgments, sec. 72, 73; Rogers v. Rogers, 1 Paige Ch. 188, and authorities there cited; Emery v. Whitehead, 6 Mich. 491; McCormick v. Wheeler, 36 Ill. 114; Perdue v. Bradshaw, 18 Ga. 287; McClanahan v. Smith, 76 Mo. 428.

IV. The record in this case shows that defendant (supposing a final judgment had been rendered), in December, 1883, appealed the case to this court, where it was dismissed by appellant on account of there being no final judgment in said cause. If plaintiff, by waiting until the time had elapsed for appeal or writ of error, could deprive defendant of all remedy to correct the error of the trial court prior to the alleged amended judgment, then such delay would give him an unconscionable advantage over defendant, unless his laches destroyed his right to his judgment nunc pro tunc. Authorities supra.

V. From all which appellant contends that the court erred in rendering its judgment nunc pro tunc. Because it shows from the records that the court ordered no judgment rendered upon the verdict of the jury. Because there was no proper record evidence that any judgment had ever been ordered by the court, which the clerk failed to enter. Because plaintiff, by his delay, had forfeited all right to have any alleged judgment amended.

E. M. HARBER and R. A. DEBOLT, and WM. M. RUSH, for the respondent.

I. The respondent claims that the bill of exceptions filed by appellant at the October term, 1883, should be wholly disregarded in determining the appeal from the judgment nunc pro tunc taken in February, 1887, for the reasons: (1) That immediately after filing the transcript in 1883 in this court, appellant dismissed his appeal. (2) That in dismissing his appeal, appellant lost all his right to have the action of the trial court appealed from in 1883, reviewed by this court on his appeal from the judgment amending the record nunc pro tunc at the February term, 1887. (3) The appeal taken in 1887 did not revive the appeal taken and dismissed in 1883, nor did the former appeal revive the right lost by dismissing the latter. (4) The bill of exceptions filed in 1883 was not read in evidence at the hearing in February, 1887, of the motion of respondent to amend the record, consequently ought not to have been incorporated in the bill of exceptions, filed in the appeal therefrom, and ought not to be considered in determining said appeal. (5) The record shows that appellant knew that the clerk had failed to enter and record the judgment of the circuit court rendered at the October term, 1883, and, knowing of this defect, if he desired to have his appeal heard, his remedy was not in dismissing his appeal, but by having the record amended nunc pro tunc, in conformity with the judgment of the court. (6) The effect of the record on the parties thereto was the same whether the judgment of the court was entered or not. Freeman on Judgments, sec. 72 a; Emery v. Whitwell, 6 Mich. 491. (7) That the appeal from the judgment nunc pro tunc in 1887 was taken more...