Mann v. Schroer

50 Mo. 306 | Mo. | 1872

Adams, Judge,

delivered the opinion of the court.

This Avas an action brought on a mechanic’s lien. In his original petition the plaintiff misdescribed the property on which he filed the lien. At a subsequent term, and more than ninety days after the lien was filed, he filed an amended petition correcting-the description. The defendant filed answer, and among other .things set up that the suit Avas not commenced within ninety days after the lien Avas filed.

The original petition was filed and the Avrit of summons was issued Avithin the ninety days, and the amended petition Avas only a continuance of the original proceeding, and not the commencement of a neAY action. The court tried the case at the October term, 1870, and gave judgment for the plaintiff. No motion was made to set aside the judgment, or for a neAY trial, nor Avas any bill of exceptions saved.

The clerk, however, in entering up the judgment, omitted to make it a special judgment on the lien sued on, and it stood thus until the next term of the court, AYhen the plaintiff filed a motion to have an entry nunc pro tunc of the proper judgment, correcting the clerical mistake in the original judgment; and such judgment Avas accordingly entered as of the last term. It does •not appear from the record that the defendant had any notice of this motion or of the action of the court upon it. After the end of a term at which a final judgment is rendered, the defendant is no longer in court for any purpose connected with such judgment. But the entry of this nunc pro tunc judgment, without notice to the defendant, is not süch an error as would render the judgment void, or as could be taken advantage of in a collateral proceeding» The case, however, has been brought before us by writ of error, and we are called upon to act directly upon the record. While it is perfectly competent at a subsequent term to make such entries in furtherance of justice, we think the defendant ought to be notified to show cause why such entry should not be made. He may be able to show that the judgment has been satisfied, and therefore that such entry might be unnecessary. But unless good cause is shown, the court undoubtedly ought to make the entry.

As the defendant was not notified and did not appear, this nunc pro tunc judgment is reversed and the cause remanded, .with leave to the plaintiff to renew his motion for a nunc pro tunc judgment.

The other judges concur.