York v. Stigall

• Decision Date: 29 May 1907
• Parties: YORK v. STIGALL.
• Court: Missouri Supreme Court

102 S.W. 987

204 Mo. 407

YORK v. STIGALL.

Supreme Court of Missouri, Division No. 1.

May 29, 1907.

COURTS—RECORD—DEFECTS—CORRECTION.

The court may at a subsequent term correct its record falsely reciting the filing of a motion for new trial on the day of the rendition of the verdict, where the record shows that the cause was, after the rendition of the verdict, continued for the term.

Appeal from Circuit Court, De Kalb County; Alonzo D. Brunes, Judge.

Action by Joseph N. York against W. M. Stigall. From a judgment for defendant, plaintiff appeals. Affirmed.

L. F. Henry, John A. Cross, and K. B. Randolph, for appellant. W. H. Haynes and W. M. Fitch, for respondent.

VALLIANT, J.

Plaintiff sues for damages for an alleged libel. The cause was tried at the October term, 1903, of the De Kalb county circuit court. There was a verdict for the defendant, and judgment accordingly. The plaintiff appealed.

At the threshold of the case the defendant raises the point that there was no motion for a new trial filed within the time allowed by law, and therefore the action of the court in overruling the motion is not here for review. The verdict was rendered and the judgment entered October 21, 1903, and in the plaintiff's abstract of the record is the statement that the record of the court shows that during that term and on the same day in which the verdict was rendered the plaintiff filed a motion for a new trial and also a motion in arrest of judgment, and that thereupon the cause was continued. At the next term, February, 1904, the defendant filed a motion to strike the motion for a new trial from the files, for the reason that it was not filed within the four days allowed by law, or even within the term within which the verdict was rendered, and not until the first day of the February term. Thereupon an order was made and entered on the record of the court continuing the motion for a new trial and the motion to strike it out until the next term. At the next term, May, 1904, those motions came on to be considered by the court. Whereupon the court overruled the motion for a new trial, for the reason, as stated in the order of the court, that it was not filed in time, and sustained the motion to strike out the motion for a new trial for the same reason. The only motion for a new trial contained among the files was one bearing the filing indorsement of the clerk in these words: "Filed Feb. 1st, 1904, 8:30 a. m. A. J. McCoy, Clerk Circuit Court." In the bill of exceptions it is said that at the February term the motion to strike out came on to be heard, and evidence was adduced to show that the motion for a new trial was not filed until February 1, 1904, and after hearing the evidence the court took the motion under advisement, and continued the cause to the May term, with the result as above stated. In the bill of exceptions it is also said that the motion for a new trial and the motion in arrest of judgment were not filed on the day on which the record of the court says they were filed.

Appellant contends that the record entry saying that the motions were filed on October 21, 1903, is conclusive, and cannot be contradicted by any statement in the bill of exceptions or by evidence outside the record. Since appellant states in his own bill of exceptions that the motion for a new trial was not filed at the date the entry on the court record says it was filed, he is forced to take the position that, admitting the entry to be false, it is nevertheless to be taken as true and indisputable. A court record imports absolute verity. Therefore its truth is not subject to collateral attack. But, because it is held to be true, it is most...