Bohm Bros. v. Stivers

75 Mo. App. 291 | Mo. Ct. App. | 1898

Ellison, J. —

statement. Plaintiff’s sued ‘defendant in attachment. Interpleader filed her interplea claiming the attached property. The property had been converted into money by order of the court and was ^ hands of the sheriff. On trial of the interplea the interpleader obtained the verdict of the jury. Afterward, at a succeeding term of the court, the interpleader filed the present motion for a nunc pro tunc judgment and the court sustained the motion. Plaintiffs appeal.

The sole question is on the sufficiency of the evidence to sustain the action of the court. That evidence consisted of the records, and the material parts of it were as-follows, viz.: The petition; affidavit and bond; the writ of attachment and sheriff’s return, an order of sale of the attached property; and the sheriff’s return showing amount realized; the interplea filed by interpleader, together with the answer and reply. The following entries in the clerk’s minutes or docket wero read:

“June Term, 1895.

“Docket p. 218 No. 121

Bohm Bros. -vs-J. M. Stivers, Dft. & Iona A. Burns, Interpleader.

25 Interpleader files general denial and cause taken up. Jury called.

26 (See record.)

26 Trial resumed. Verdict for interpleader.

27 Plf£. file motion for new trial. Motion heard and overruled. Plff. excepts.”

Then the following from the record proper:

“Bohm Bros, Plaintiff, vs.

“Iona A. Burns, Interpleader.

“Now again come the parties hereto and the jury-being called and all found to be present the trial hereof is resumed. And after the introduction of testimony, instructions of the court and argument by the counsel, the jury retire and return the following verdict, to wit:

“ ‘We, the jury, find the issues for the inter-pleader, Iona A. Burns, June 26th, 1895.

“ ‘L. H. Tucker, Foreman.’

“It is therefore considered, ordered and adjudged by the court that the plaintiffs take nothing by the trial of the interpleader herein, and that Iona A. Burns as such interpleader recover of plaintiffs the costs herein and that execution issue therefor.”

The court, as before stated, sustained the motion for judgment nunc pro tunc and entered the following judgment:

“Joseph Bohm and Samuel Fleishman composing firm of Bohm Brothers and Company, Plaintiffs, vs. “J. W. Stivers, Defendant,

“Iona A. Burns, Interpleader.

“Now again come the parties hereto and the jury being called and all found to be present the trial hereof is resumed. And after the introduction of testimony, instructions of the court and argument by the counsel, the jury retire and return the following verdict, to wit:

“ ‘We, the jury, find the issues for the inter-pleader, Iona A. Burns, June 26th, 1895.

“ ‘L. H. Ttjckek, Foreman.’ ■

“It is therefore considered, ordered and adjudged by the court that Iona A. Burns, the interpleader, was the owner and entitled to the possession of all the property described in the interplea at the date of the levy and seizure of same by the sheriff, under the writ of attachment issued in this case and the filing of her interplea herein, and that she have and recover the proceeds arising from the sale of the goods by the sheriff, and that the sheriff be ordered to pay the same over to the interpleader, and that the interpleader recover of the plaintiffs her costs in this behalf expended, and have execution therefor. It is.further ordered and adjudged that plaintiffs pay the costs of this motion and that execution issue therefor.”

Jmmcp?otunc p?esumpvatnnce: The rule in regard to nunc pro tunc judgments is that the evidence upon which their entry is based must be gathered from the record of what was done and not from the recollection of the judge, or what ought to have been done. If there was no judgment rendered at the term, it can not be rendered nunc pro tunc simply for the reason that it ought to have been rendered at the term. And if an improper or erroneous judgment is rendered it can not be corrected after the term by a mine pro tunc entry. The object of the nunc pro tunc entry is to enter the judgment which the court has actually rendered and not to correct error of judgment.

The supreme court has frequently held that the judgment entered by the clerk is presumed to be the judgment directed by the court and that this presumption must be overcome by proper record evidence of a different judgment actually rendered by the court. Wooldridge v. Quinn, 70 Mo. 370; Jones v. Hart, 60 Mo. 354.

In this case there was nothing shown from the judge’s docket. And the only evidence of practical importance is the clerk’s minutes together with the entry of judgment. There is nothing in these to show us that the original entry by the clerk is not the actual judgment rendered by the court. Presumably, as before stated, it is, and that presumption must be overcome by evidence. There is none whatever unless we are to assume the court actually rendered the proper judgment for the reason that it ought to have done so. We can not make such presumption. We must presume the court did what the record shows and nothing different. If we were at liberty to presume the court rendered a proper judgment simply for the reason that it ought to have rendered it, parties would not be put to the trouble of evidence at all in nunc pro kmc proceedings — they would merely need to show what the law warranted in being done and then have it done.

All concur in a reversal and it is so ordered.