Martin v. Brown

162 Mo. App. 223 | Mo. Ct. App. | 1912

Lead Opinion

BROADDUS, P. J.

This is an action to recover upon a judgment of the circuit court of Macon county, Missouri, renderéd December 2, 1897. The suit was brought in November, 1907, against J ames H. Brown, who died before service of summons was had upon him,- and thereafter revived on motion against Louisa L. Brown, as administratrix.

The original judgment was founded upon a promissory note dated February 20, 1896, payable to one Isaac Van Houten, for three hundred and thirty dollars, due in eight months with interest at the rate of eight per cent per annum. A credit of two hundred dollars was indorsed on said note on the 1st day of November, 1896, and a further credit of two dollars July 30, 1897. The plaintiff alleged due assignment of the note to himself, demand and refusal to pay. The defendant admitted the execution of the note, denied its assignment to plaintiff and set up certain matters as a set-off to the amount of $85.75, which he asked to be credited on the note.

A copy of the verdict was introduced in evidence which reads as follows: “We the jury find the issue for the defendant.” The jxidgment of the court was for plaintiff in the sum of $98.67. The defendant objected to the judgment as evidence on the ground that it is not supported by the verdict, and because there is a fatal variance between the proof offered and the allegations of the petition. The objections were overruled.

On the 8th day of October, 1908, the plaintiff gave defendant notice that at the December term of said Macon County Circuit Court, beginning on the 2nd day of December, 1908, he would file a motion, a copy of which was attached, asking for an order of the court correcting the entries of the clerk of said court concerning the judgment rendered in said cause so as to make them conform to the facts and finding of the court. At said December term a mmc pro tunc order was made; said order recites, after formal parts, as follows: “And the court finds from the petition, answer and reply of parties filed herein that this is a suit on a promissory note of the defendant, on which plaintiff claims a balance of principal and interest, amounting at this date to one hundred and eighty-four and forty-four hundredths dollars, as due and unpaid, for which plaintiff asks judgment, and that defendant in his answer claims an off-set or counterclaim of eighty-five and seventy-five hundredths dollars, for which he asks judgment, and that the same he credited on said note, leaving a balance due on said note of ninety-eight and sixty-seven hundredths dollars, which is admitted by defendant, and that the only issue is as to the set-off or counterclaim of eighty-five and seventy-five hundredths dollars, which was alone on the set-off set up by defendant and denied by plaintiff.” Then follows a recitation of the verdict of the jury; and the usual form of a judgment for the balance of said note admitted and uncontested in the sum of $98.67.

One of the objections made to the admission of said judgment as .amended is that it is not the one described in the petition. The petition alleges that the judgment was rendered for the sum stated in the petition, but as to the judgment for costs, which was left blank in the original judgment, there is a discrepancy as to the amount stated in the amended judgment. The petition alleges the amount to be $53.75, whereas the said judgment for costs is stated at $54.75. We do not think this discrepancy a sufficient variation for rejecting said judgment as evidence. The objection is merely technical.

Another objection is that the nunc pro tunc order was made more than ten years after the entry of the original judgment. The amended judgment was the correction merely of a clerical error, and relates back to the date of the original entry, and which the court could' make at any subsequent time however long. [Dawson v. Waldheim, 89 Mo. App. 245, and cases cited.]

It is insisted that the court had no sufficient data to authorize the amendment. We think otherwise. The pleadings in the case show that the only issue between the parties was whether the defendant was entitled to certain credits, it being admitted that tbe defendant was indebted after the allowance of said credits for a balance in the snm of $98.67. The question as to whether the defendant was entitled to the credits claims was submitted to a jury which found the issue in his favor. There was then nothing left to do but for the court to render judgment for the amount admitted to be due, which it did accordingly. The record afforded a plain and unmistakable guide for its action in amending the said judgment. Nothing was left for conjecture. Under such circumstances it is unnecessary to cite authority in support of the action of the court.

It is claimed that the judgment is excessive in that it exceeds the amount claimed in the petition. Under the allegations of his petition plaintiff seeks to recover judgment for $243.12, whereas the judgment rendered is for $203.57 for his debt and damages, and for the further sum of $107.35 costs. It seems, however, that the judgment is not excessive in the respect claimed. Adding, however, the judgment for costs, it does exceed such amount, but this does not make plaintiff’s judgment excessive as a judgment for costs in favor of the winning party follows as a rule, without reference to the amount of the judgment itself.

The objection is also made that the judgment is against Brown, the deceased, instead of against defendant, his administratrix. This was error, but merely clerical, which the court at any time can correct by a nunc fro tunc order, which it is directed to do.

Many other questions are raised which seem to us wholly immaterial. The record conclusively shows that the judgment is for the right party, and the proceedings are free from any error of practical importance. Affirmed.

All concur.

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Rehearing

ON REHEARING.

JOHNSON, J.

We granted a rehearing on the ground that possibly we might have erred in the conclusion expressed in the foregoing opinion to the effect that the judgment does not exceed the limit imposed in the petition on plaintiff’s demand. A reexamination of the petition, evidence and judgment satisfies us that the judgment is in excess of the amount claimed in the petition and should be purged of such excess. In the judgment the learned trial judge separated .the demand, giving plaintiff judgment for the amount of the original judgment with interest computed thereon at eight per cent per annum and for the amount of the costs in the Macon County Circuit Court with interest thereon at six per cent per annum. The petition made no separation but computed interest on both judgment and costs at six per cent and prayed judgment for the sum of both, i. e., $243.12. The judgment before us should have been for that amount with interest at six per cent per annum from the date of the commencement of this suit. The judgment, therefore, will be reversed and the cause remanded with directions to enter judgment for plaintiff in accordance with this opinion. It is so ordered.

All concur.