State ex rel. Sheridan Publishing Co. v. Goodrich , 159 Mo. App. 422 ( 1911 )

JOHNSON, J.

This is an original proceeding for a writ of prohibition against the judge of the assignment division of the circuit court of Jackson county. The facts are undisputed and may be stated as follows:

The Graham Paper Company brought an action at law against the Sheridan Publishing Company (the present relator), in the circuit court of Jackson county. An answer was filed and the trial of the cause was set for May 10, 1910. The cause was not tried on that date and no entry relating to its disposition was made on any of the records kept by the clerk of the court. The Honorable T. J. Seehorn was judge of the assignment division at that time and on the docket kept by him the words “Dis. for want of pros.” appear opposite the title of the cause. No judgment of dismissal was entered of record and the cause was reassigned for trial on March 23, 1911, before the Honorable James H. Slover, one of the judges of the court. On that date the relator. appeared and contended that the cause was not for trial since it had been dismissed for want of prosecution. Thereupon Judge Slover returned it to the assignment division and relator filed a motion for a judgment of dismissal nunc pro tunc. Respondent, then judge of the assignment division, assigned the cause to Judge See-horn to hear and determine relator’s motion. After hearing the evidence Judge Seehorn overruled the motion and returned the cause to the assignment division for further proceedings. Relator filed an affidavit of appeal from the order overruling its motion but its application for appeal was overruled and respondent announced that the cause would be assigned for trial. Relator then initiated the present action to prohibit respondent from proceeding with the cause as with one for trial.

A dismissal of a cause for want of prosecution, though not a final ending of the controversy, is a final ending of that particular suit. ■ In effect, it is a final judgment for the defendant, though it does not preclude the plaintiff from bringing a new suit for the same cause. [3 Words and Phrases, 2105; Livingston v. N. E. Mortgage Security Co., 91 S. W. Rep. 752.] Should it appear that Judge Seehorn dismissed the action in question, the order of dismissal, if not set aside during the term at which it was made, should, be regarded as a final judgment, and the mere fact that the clerk failed to record the judgment or make any entry of it on the record books kept by him would not deprive the judgment of any of its force or vitality. Such neglect or misprision of the clerk could be rectified at a subsequent term by a nunc pro tunc order. The judgment is complete when properly declared though the ministerial act of recording it has not been performed. “The rendition of the judgment is the judicial act upon which the execution rests, its entry upon the record is a mere ministerial act evidencing the judicial act, but not essential to its validity or giving to the judgment any additional force or efficiency.” [Fontaine v. Hudson, 93 Mo. l. c. 70.]

“Where the clerk either by design or mistake fails to record the judgment actually rendered the court may alter the memorial of the judgment to make it express the sentence pronounced, provided the record entries furnish the evidence to support the correction.” [Kreisel v. Snavely, 135 Mo. App. l. c. 158.]

After the expiration of the term at which a judgment is rendered the court can speak only by its records and though a judgment actually was pronounced, if the act is not made the subject of any entry, either by the judge or clerk, the judgment loses its vitality from the complete lack of authentic means of support. To hold otherwise would be to say that a judgment might rest alone in the memory of the judge and to ignore the rule that a court can speak by its records alone.

' While the minutes kept by the’ judge are not the memorial of the judgment and are not records required by law to be kept, they constitute legal evidence of what was adjudged (Kreisel v. Snavely, supra) and, as such, may serve as the foundation for the correction of errors of. the clerk in the performance of bis duty and, in the present case, had Judge Seehorn sustained the motion for a nunc pro tuno judgment, we would hold that the entry in bis minute book amply supported sucb ruling. But in overruling tbe motion be refused to give conclusive effect to bis entry and relator is in tbe position of urging us to accord it sucb effect. Tbe position is untenable. Tbe minutes are only evidence of wbat was done. Tbe records kept by tbe clerk also are competent evidence and since they fail to show any judgment was pronounced, tbe learned judge acted within tbe scope of bis authority and duty in deciding tbat no judgment, in fact, was declared. Tbe conflicting evidence before bim raised an issue of fact for bis determination and we perceive no good reason for disturbing bis conclusion. It is possible that the entry of dismissal was made erroneously. He found that it'was; the finding is supported by competent evidence and we shall not say that he could not have erred in making the entry and in allowing it to stand on his docket. The writ is denied.

All concur.