McGonigle v. Bresnen , 44 Mo. App. 423 ( 1891 )

Rombauer, P. J.

The plaintiff recovered judgment before a justice, and the defendant appealed, but failed to give the statutory notice of appeal to the plaintiff. The appeal was returnable to the June term of the circuit court, and, at that term, the following entry was made by the clerk: “At this day come the parties hereto by their respective attorneys. Thereupon this cause is continued until the next term of this court.” At the next term of court, the plaintiff moved for an affirmance of the judgment because he did not have statutory notice of the appeal, but, upon discovering the aboye record entry, he first filed a motion to correct it nunc pro tunc by striking out the words, “ at this day come the parties hereto Toy their respective attorneys. Therexipon,” so as to make the entry show a simple continuance of the cause and nothing more, alleging, as a ground for the motion, that the words to be stricken out were a mere misprision of the clerk, as he had never entered his appearance in the cause, nor authorized anyone else to do so in his behalf. The court first sustained the motion to correct the record nunc pro tunc, and thereupon affirmed the justice’s judgment upon the plaintiff’s motion. Prom this judgment the defendant prosecutes this writ of error.

It appears by the transcript that there was no formal entry of an appearance by the plaintiff at the June term. The clerk had written, opposite the entry of the plaintiff’s name in the judge’s docket, the name of Gh R. Balthrope, who subsequently appeared as plaintiff’s attorney in making the motion to affirm. The judge wrote opposite the case, when first reached for hearing, “passed to June 25,” and subsequently, the exact date not appearing, the word, “continued.” These were all ‘the entries outside of the record entry by the clerk. Oral evidence was given by the attorneys of plaintiff and defendant. The former testified that he was not attorney for the plaintiff at the June term of court, and had not entered his appearance; that the cause was not passed by his request, nor continued by his request, and that he never agreed either to its postponement or continuance in any manner whatever, although he might have been in the court when the cause was continued. The defendant’s counsel testified that he had an arrangement with the counsel for plaintiff to postpone the trial of all cases'in which'they were engaged, owing to the necessary absence of plaintiff’s counsel until June 24. He did not state that this case was mentioned, but only that it was not excepted. He also testified that, acting on such request, he had this case with others laid over to June 25.

The judge first heard all this evidence, but after-wards ruled it out, on the supposition, we assume, that oral evidence was inadmissible on a motion to correct any record entry nunc pro tunc. This ruling was incorrect. The law on this - subject is thus stated in Saxton v. Smith, 50 Mo. 490: “During the progress of a cause and before final judgment, or after final judgment during the same term, nunc pro tunc entries may be made in furtherance of justice to conform the entries to the truth. But after the end of the term at which a final judgment is rendered, no entry can be made altering the form of the judgment, unless the facts appear of record, or on the minutes or the dockets of the court, or from the papers on file, to authorize such change. Such entries cannot be made from outside evidence, or from facts existing alone in the breast of the judge after the end of the term at which the final judgment was rendered.” The rule which excludes oral evidence, or which prevents the amendment of entries by the recollections of the judge, unaided by records or minutes, is confined in its operation to cases, wherein the records are sought to be amended after the lapse of the term at which a final judgment was rendered. This distinction is very clearly pointed out in Judge Thompson’s opinion in Evans v. Fisher, 26 Mo. App. 541, which contains a very full and satisfactory discussion of the entire subject. Before final judgment every court of record has full jurisdiction of the case, but after final judgment and after lapse of the term, though it still retains jurisdiction of the record, it has lost jurisdiction of the case, and can regain it only in modes pointed out by the statute.

While we are of opinion that the court should not have rejected the oral evidence offered, we cannot see how the fact that it did reject it can affect the validity of its judgment. This evidence, which is preserved in the transcript, fails to show that the plaintiff or his attorney did enter an appearance during the first term, or that either of them Hd anything which should estop the plaintiff from showing that no such appearance was entered. It is immaterial, therefore, whether the judge acted in reforming the entry of continuance upon his own recollection of the true state of facts, aided by such entries as he found upon his minutes, or whether he should have considered the oral evidence likewise, as in either case the result arrived at was warranted.

All the judges concurring, the judgment is affirmed.