Bishop v. Seal, 92 Mo. App. 167

Bishop v. Seal

92 Mo. App. 167 | Mo. Ct. App. | 1902

BROADDUS, J.

This is a motion to correct the petition and judgment in the case, by inserting the word “fifth” in the description of several lots, so they will read “lots 368, 369, 370 and 371 in South Carterville Mining and Smelting Company’s fifth addition,” instead- of “South Carterville Mining and Smelting Company’s addition,” as it is recited in the record.

In 1899 plaintiff sued defendant in said circuit court, to *170enforce a vendor’s lien against said lots, describing them as located in Sontb Carterville Mining and Smelting Company’s addition to tbe city of Carterville, Missouri. There was a judgment in favor of plaintiff enforcing her vendor’s lien, from which defendants appealed. The appellate court - affirmed the judgment of the circuit court, which judgment of affirmance is reported in 87 Mo. App. 256. After the mandate of the appellate court had been forwarded to the clerk of the circuit court, it was discovered that the land was misdes-cribed in both the petition and the judgment, after which the motion in question was filed to amend both. The court overruled the motion and the plaintiff appealed.

There has been some misunderstanding among lawyers of the power of courts to amend judgments at subsequent terms. However, it is well understood that the courts are authorized to render nunc pro tune judgments at subsequent terms, so as to make them conform to the judgments rendered or intended to be rendered. These nunc pro tunc judgments are made from the memoranda of the clerk or entries on the judge’s docket. The errors to be remedied are called irregularities or clerical errors. The following cases fairly illustrate what are so classified: Robertson v. Neal, 60 Mo. 579; Fletcher v. Coombs, 58 Mo. 430; State ex rel. v. Judge, 61 Mo. 166.

There is another line of decisions in the State which hold that for an error of fact which may be shown by affidavit or other evidence, a judgment may be attacked by motion at a subsequent term. Neenan v. City of St. Joseph, 126 Mo. 89, was a tax suit in which a judgment had been rendered against an infant without the appointment of a guardian ad litem. This was contrary to law, and the court held that it was proper to amend the judgment at a subsequent term by setting same aside as to the infant. In Ex parte Gray, 77 Mo. 160, the defendant who was under eighteen years of age, was sentenced by the court to the penitentiary. This was contrary to law. The court at a subsequent term, upon being *171advised of said fact, revoked tbe sentence and committed tbe prisoner to tbe county jail. He was, however, taken, it is supposed, under tbe original sentence, to tbe penitentiary. He sued out a writ of babeas corpus from tbe Supreme Court, wbicb beld that tbe action of tbe trial court in setting aside tbe former sentence and committing tbe prisoner to tbe county jail, was legal, and released bim from tbe penitentiary and resentenced bim to tbe county jail.

In Craig v. Smith, 65 Mo. 536, it was beld that a motion (filed at a subsequent term) to vacate and set aside a judgment on tbe ground that, at tbe time of its rendition, tbe court bad no jurisdiction of tbe defendant’s person, may be regarded in tbe nature of a writ of error coram nobis, or as warranted by tbe statute authorizing a motion for this purpose to be’ filed within three years from the rendition of tbe judgment. In Latshaw v. McNees, 50 Mo. 381, a similar rule was applied, as tbe judgment was against a married woman alone, which was against tbe statute then in force. In Randolph v. Sloan, 58 Mo. 155, it was beld that as there was no personal service and no appearance to tbe action, tbe defendant bad three years in wbicb to review tbe judgment.

In all this class of cases it will be seen that tbe courts base their rulings on tbe ground that tbe judgments were irregular; not that there were clerical errors in entering tbe wrong judgments. The vice consists in rendering judgments that are unauthorized by law. In Neenan v. City of St. Joseph, and Ex parte Gray, supra, a motion of this kind is treated as a writ of error coram nobis or vobis. This was a common-law writ issued when the facts affected tbe validity and regularity of tbe judgment itself, and to remedy such defects. Stephens Pleadings, 139. Eor instance, in a case when a party to tbe suit was dead at its commencement, when a judgment was entered against an infant when not represented by bis guardian; or when a judgment was entered against a *172married woman without joining her husband, as was the case in Latshaw v. McNees, supra.

There is another class of cases in which it is held that :a judgment can not be amended at a subsequent term by establishing facts by extraneous evidence, qr evidence other than that of some entry on the clerk’s minutes or the judge’s docket or from matters of record. In Ross v. Ross, 83 Mo. 100, it was held that a court can not at a subsequent term change its judgment to one it neither rendered nor intended to render; and that as a general rule, no final judgment can be amended after the term at which it was rendered. The proceedings were to set aside a conveyance of a tract of land in range 12, Cape Girardeau county, on the ground of fraud perpetrated by the grantee, but afterwards the petition was amended wherein it was alleged that the deed was intended as a mortgage. After judgment the case was appealed, after which it was discovered that there was a misdescription of the land, and on motion and after sale under the judgment, the description was changed to range 13 in the place of range 12, as it appeared in the petition and original judgment. The ■defendant moved to set aside the sale because it was made under said amended judgment. The motion was overruled. The court held that the motion should have been sustained, on the ground that the amendment to the judgment was unauthorized. The opinion was: “The mistake in the original proceedings was not a mistake of the court, but a mistake made by the pleader, and the judgment following the petition was the very judgment prayed for and actually rendered.” See also Hubbard v. Moss, 65 Mo. 647; State ex rel. v. Harper, 56 Mo. App. 611; Jones v. Hart, 60 Mo. 351; and Woolridge v. Quinn, 70 Mo. 370. A careful examination of all the cases cited in this opinion will show that there is no conflict between them, but that they apply to different state of facts.

This case comes under the rule laid down in Ross v. *173Ross, supra. It is not often that the facts in two different cases are so nearly parallel. Here the vice is in the mis-description of the land in the petition and in the original judgment. It was so in Ross v. Ross. The motion in each is to-correct both petition and judgment so as to make them correspond to the intention of the pleader. The judgment was rendered in each case upon the description in the petition.. Precisely the same language will apply to this case, that was applied to the other. This is not a proceeding to amend or attack an irregular or illegal judgment, for it is both regular and legal. It is the judgment the court intended to render, in fact the only one it could havé rendered under the pleadings. A writ of error coram nobis or vobis, nor a motion to cure an irregularity will avail the plaintiff. But plaintiff claims, as the evidence preserved in the bill of exceptions, being a. part of the record, shows a true description of the lots, the court was authorized to correct the error under section 660, Revised Statutes 1899. This evidence shows a variance between the pleadings and the proof, and the practice in such cases is governed by section 655, supra, which regulates amendments during the trial.

Erom what has been said we are of the opinion that the judgment of trial court was sound. Cause affirmed.

All concur.