Lexington & St. Louis Railroad v. Mockbee , 63 Mo. 348 ( 1876 )

Per Sherwood, J.,

concurring.

I concur, for the reasons set forth, in my dissenting opinion in Jones vs. Hart, 60 Mo. 351. That case and the present one are, in point of principle, precisely parallel. In order to conspicuously show this I here place the data from which the respective amendments were made, and the results of such amendments, in juxtaposition, thus :

Jones vs. Hart.

Clerk’s entry: “Jury return their verdict for plaintiff, and assess his damages at $4,634.91.”

Judge’s entry : “Sub. to jury, and verdict for $4,634.91.”

But the clerk entered on the court record a, special judgment in favor of the plaintiff, for the amount of the verdict.

Lexington & St. Louis R. R. Co. vs. Cuthbert Mockbee.

The minutes of the judge’s docket show the following entry :

“Trial Docket Circuit Court of Pettis County, for the July adjourned term of 1871. 'Attorneys for plaintiff, C. & S. For defendant, Rathbun & Houston. Case No. 17.

C. Mockbee vs. Lexington & St. Louis Railroad Co.

On motion of the plaintiff to amend the judgment mine pro time, the court amended the judgment, and made it a general one.

ORDER OP COURT

Objections overruled, and judgment for defendant. Motion to -set aside judgment and for new trial. Motion overruled, bill of exceptions tendered, signed and filed.”

But the clerk entered the judgment on the court record as follows :

“Cuthbert Mockbee against the Lexington & St. Louis Railroad Company.” “Now at this day come the parties herein, by their attorneys, and the objections heretofore filed by the plaintiff to the report of the commissioners in this cause, by consent of parties, is taken up, and after being seen and heard by the court, is by the court overruled. It is therefore considered and adjudged by the court, that the plaintiff take nothing by his said action — that the defendant recover against the plaintiff her eo3ts in this behalf, and that execution issue therefor.”

On motion of the Lexington & St. L. R. R. Co., the judgment was amended nwnepro tune, as follows:

“The Lexington & St. Louis Railroad Company against Cuthbert Mockbee.”

Now at this day come the parties hereto, by their attorneys, and it appearing to the court that the defendant herein, Cuthbert Mockbee, has heretofore refused and now refuses to grant plaintiff, the Lexington & St. Louis Railroad Company, the right of way for its railroad over and through the following real estate belonging to said Cuthbert Mockbee, and situated in Pettis County, Missouri, viz: The north half of the northeast quarter of section number twenty-three (23), and the south half of section number fourteen (14), and the south half of the northwest quarter of section number fourteen (14), all in township number forty-seven (47), range number twenty-two (22), and it further, appearing to the court that on January the 6th, 1S69, John M. Sneed, S. R. Emery and C. C. Godman, disinterested citizens of said Pettis county, appointed commissioners by the judge of the court, after five days’ due and legal notice to defendant, under the provisions of an act of the General Assembly of the State of Missouri, entitled “an act'to incorporate the Lexington & St. Louis Railroad Company,” approved December 9, 1S59, to view the lands of Outhbert Mockbee, hereinafter de"scribed, and report what damages, if any, would be done to the lands and the improvements thereon, by the construction of the Lexington & St. Louis Railroad over and through the same, did file their report, accompanied by a plat of the lands condemned, in the office of the clerk of this court, and by said report, the said commissioners say, after considering the value of the land, and the advantage and disadvantage of the road to the same, that no damage has been or will be done to said lands of defendant, or the improvements thereon, by the construction of said railroad over and through the same, and the said Outhbert Mockbee having filed in the court his objections to said report within ten days after the filing of said report by consent of the parties hereto, the said report and objections are now taken up by the court, and being seen and examined, and the testimony having been ’heard, the court doth order and adjudge that said report of said commissioners be approved, and that said Outhbert Mockbee be divested of the fee simple title in and to a strip of land one hundred feet in width over and through the lands hereinbefore described, as shown by the report and- plat filed by said commissioners, and that the same be vested in the Lexington & St. Louis Railroad Company; and it is further ordered that said company pay the cost of this proceeding.”

Result in this court: Judgment reversed and causo remanded.

Result in this court: Judgment af- ^

The case of Jones vs. Hart was pressed on our attention in the ease at bar, as decisive of the lack of power in the lower court to make the amended entry mine pro lunc. But that case has been passed sub silentio and with averted eye.

It would doubtless have been more satisfactory to the profession, and especially to the counsel who so confidently relied on it, had that case been discussed and overruled in terms as well as in effect. For in my humble opinion, if this case is law, that is not, and vice versa.