Exchange National Bank v. Allen
68 Mo. 474
Mo.
1878
Check Treatment
Norton, J.

1. motion for new TRIAL-

It hаs been settled by repeated decisions that this court will not reviеw the proceedings badina trial court when the party prosecuting. his appeal or writ of error, has failed to file his motion fоr new trial or in arrest of judgment within the statutory time, thus giving the lower court an opportunity to correct its error. Morgner v. Kister, 42 Mo. 466; State v. Marshall, 36 Mo. 400; Morgan v. January, 52 Mo. 523; Banks v. Lades, 39 Mo. 406.

2. appeal: entries nune pro tunc.

The record before us as amended by the nunc pro tunc •entry made by the circuit cоurt in November, 1877, shows that neither motion for new trial nor in arrest was tiled at any time. It is, however', insisted, with much earnestness, that ‍‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌‍the trial court, after the cause had been transferred to this court by appeаl, lost its jurisdiction of the cause and the record, and could not, therefore, lawfully make an order nunc pro tunc. This *476position, we think, is not maintainablе, and is overthrown by the case of DeKalb Co. v. Hixon et al., 44 Mo. 341, in which if was held that it was within the power of the trial court to make such entries after appeal taken, and while pending in the appellate court: “ That while by suсh appeal the trial court lost its jurisdiction of the case, it did nоt of its records. ‍‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌‍It had authority as well after as before the appeal to amend its records according to the truth, so that thеy should accurately express the history of the proceedings which actually occurred prior to the appeal.” This сase was followed and approved in Jones v. St. Jo. Fire & Mar. Ins. Co., 55 Mo. 342. In all such cases, hоwever, the record should show the facts authorizing the entry, and it should not be based on the memory of the judge or facts proved by affidаvits apart from what is shown by the record. Robertson v. Neal, 60 Mo. 579; Priest v. McMaster, 52 Mo. 60; State ex rel. v. Prime, 61 Mo. 166; Lexington & St. Louis R. R. Co. v. Mockler, 63 Mo. 348.

It appears that the сause before us was tried in the Boone circuit court on the 28th day of August, 1874, and the entry in the record then made was that defendants filed mоtions for new trial and in arrest of judgment. It also appears that plaintiff gave proper and timely notice to defendants that he would, on the 21st day of November, 1877, while the appeal was still pending in this court, apply to the circuit court, of Boone, to correct the above record entry, ‍‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌‍so as to show that no motiоn for new trial or in arrest of judgment had been filed. This motion of plaintiff (defendants appearing thereto) was heard, and considerеd by the court and was sustained, and an order made correcting the entry as prayed for. “ This being done on motion after due noticе to the defendants and the correction having been made, wе will presume that the court had sufficient evidence in its records tо authorize the change in the entry.” Jones v. St. Joseph Fire and Marine Ins. Co., 55 Mo. 344. The cases of Stewart v. Stringer, 41 Mo. 400, and Todd v. Cousins, 35 Mo. 513 relied upon by *477defendants’ counsel as estаblishing the doctrine, that after an appeal to this court the circuit court has no authority to make an entity nunc pro tunc, correcting the record, were ‍‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌‍before the court in the case of DeKalb Co. v. Hixon, supra, and in the case of Jones v. St. Joseph Fire and Marine Ins. Co., supra, and it was said in the latter case “that the objection taken that the сourt had no power after the cause was brought here by aрpeal or writ of error to make an entry nunc pro tunc, has heretofore been considered by this court aud determined ‍‌‌​‌​‌​​‌​‌​​‌‌​‌​‌‌​‌‌​‌​​​​‌​‌​‌‌‌‌​​​‌‌​‌​‌‌‌‍otherwise. The pоwer of the circuit court to make the nunc pro tunc entry being thus established, and as the record thus corrected shows that no motion for new trial оr in arrest had been filed, it necessarily results in an affirmance of thе judgment.

Morgner v. Kister, et. al., 42 Mo. 466, 52 Mo. 523. State v. Marshall, 36 Mo. 400. Banks v. Lades, 39 Mo. 406, 36 Mo. 313. Plaintiff having filed a remittitur for the sum of $115, excess of recovery оn the note sued upon, the judgment of the circuit court, less the said sum of $115, is affirmed, the costs of the appeal being adjudged against plaintiff. Miller v. Hardier, 64 Mo. 545; 65 Mo. 535.

Affirmed.