126 Mo. App. 536 | Mo. Ct. App. | 1907
Plaintiff sued defendants Watson T. Jones and E. A. Jones as partners on an account, before a justice of the peace and procured a writ of attachment to be issued in aid of the action. Judgment was recovered against both defendants and an appeal was taken by them to the circuit court. The appeal bond, conditioned as required by law, was signed by both defendants as principals and F. B. Ellis as surety. Issues raised by the plea in abatement were tried in the circuit court before a jury and a verdict returned in favor of plaintiff against the defendant Watson T. Jones and in favor of the defendant E. A. Jones. Plaintiff then dismissed the action as to E. A. .Jones and the cause went to trial on the merits. A jury was waived and the court, after hearing the evidence, entered the following judgment on his minute book:
“Plaintiff dismisses as to defendant E. A. Jones. Jury waived and cause submitted to the court and evidence heard and judgment for plaintiff against defendant W. T. Jones for $188.10.” No judgment was entered against the sureties on the appeal bond but afterward the clerk, in recording the judgment, made defendant E. A. Jones and the surety F. B. Ellis parties thereto. No further proceedings were had during that term and after the close thereof, plaintiff caused an execution to be issued on the judgment as entered by the clerk. Thereupon E. A. Jones and F. B. Ellis filed a motion to quash the execution and another motion to strike from the records of the court the judgment entered by the clerk against them on the ground, among others, that the judgment so entered was not pronounced by the court and, therefore, was void. These motions were filed and heard*540 at the term succeeding that on which the judgment was rendered and, on hearing, were sustained and the execution was quashed. After unsuccessfully moving the court for a new trial, plaintiff brought the case here by appeal. Section 4081, Revised Statutes 1899, provides that “In all cases of appeal from a justice’s court, if the judgment of the justice be affirmed, or if, on a trial anew in the appellate court, the judgment be against the appellant, such judgment shall be rendered against him and his sureties in the recognizance for the appeal.”
Putting aside other grounds of attack against the validity of the judgment urged by defendants and, conceding for argument that the learned trial judge should have regarded E. A. Jones as a surety on the bond for Watson T. Jones and included both him and Ellis as parties defendant to the judgment, the fatal weakness of plaintiff’s position is that they were not so included, and no one but the court was invested with jurisdiction to pronounce judgment against them. A clerk is a mere ministerial officer, the hand of the court, and has no authority to enter a judgment not pronounced by the court. His entry of a judgment in the records is designed to stand as a perpetual memorial of the court’s action, but the judgment itself “is the judicial act of the court in pronouncing the sentence of the law upon the facts in controversy as ascertained by the pleadings and verdict.” The entry by the clerk of a judgment the court did not render was a nullity, and the error thus committed was one which the court had jurisdiction to rectify even at a term subsequent to that at which the judgment was rendered. [Stacker v. Cooper Circuit Court, 25 Mo. 401; Robertson v. Neal, 60 Mo. 579; State ex rel. v. Primm, 61 Mo. 166; Harlan v. Moore, 132 Mo. 483; Bishop v. Seal, 92 Mo. App. 167; Cauthorn v. Berry, 69 Mo. App. 404; State v. Jeffors, 64 Mo. 376.]
Affirmed.
