Turner v. Christy , 50 Mo. 145 ( 1872 )

Wagner, Judge,

delivered the opinion of the court.

This was a proceeding instituted in the Circuit Court by the executor of Louis A. Benoist, against the administrator and heirs of James Christy, deceased, to reform the entry of a judgment. It appears from the record that in 1857, Sanguinet H. Benoist, by his confessions in writing, authorized two judgments to be entered up against him, one in favor of Louis A. Benoist, and the other in favor of Benoist and Christy, and that the clerk by mistake entered up both judgments in favor of Benoist and Christy.

The plaintiff now asks that the name of Christy be stricken from the record in the first named case, and that the judgment be amended so as to make it conform to the facts. The court below, upon the facts before it, made an order nunc pro tunc amending the judgment, and the defendants appealed.

The notice was served on the heirs of Christy, stating that the motion would be made for an amendment of the record, but Sanguinet H. Benoist was not brought in, and it is argued that he was a necessary party. This objection was not raised in the court below, and I am of the opinion that it was not essential that Sanguinet H. Benoist should have been made a party. His rights were determined by the confession, and if Christy acquired any right by the mistake of the clerk in making the entry, then he or his heirs were the only proper or necessary parties. The counsel for the appellant is mistaken when he supposes that this case is governed by the statute in reference to setting-aside judgments for irregularity. It is a proceeding outside of the statute, and invokes the inherent power residing in every court of record. We recently examined this question and reviewed the authorities in the case of Gibson v. Chouteau, 45 Mo. 171, and we there announced the conclusion that where the clerk of a court fails to enter judgment, or enters up the wrong judgment, there is no doubt about the existence of power in the court to correct the matter and order the proper entries to be made at any time; that the court may always at subsequent terms set right mere forms in its judgment, or correct misprisions of its clerk or mere clerical errors, so as to conform the record to the truth; but that, when the court has omitted to make an order which it might or ought to have made, it cannot at a subsequent term be made nunc pro lunc, and that in all cases in which an entry nunc pro tunc is made, the record should show the facts which authorize the entry.

Did the record in this case exhibit sufficient facts to amend by? The original confessions were filed and numbered in the court, and constituted a part of the record. The confession in favor of Benoist and Christy was numbered 593, and'stated the amount for which judgment was authorized to be rendered. The one in favor of L. A. Benoist alone was numbered 592, and also contained the precise sum for which judgment was to be entered. These numbers were written at the head of each case on the judgment book. The confessions pointed out clearly the parties and tne respective amounts for which judgments were authorized. The one in favor of Benoist and Christy was rightly entered, and for the proper sum, but the one in favor of Benoist alone was rendered for the correct amount, but a wrong name was accidentally inserted by the clerk. It is obvious that the judgment was rendered, and that the inclusion of the name of Christy was a mere clerical error.

The record furnishes all the necessary evidence to amend by, and we are satisfied that the court reached the proper conclusion. There is nothing in the point raised by the counsel for the appellant in regard to the effect of the judgments as they were given to secure liabilities incurred for Sanguinet H. Benoist. The confessions authorized the rendering of absolute judgments, and that is all that can be inquired into in this case.

Affirmed.

The other judges concur.