Judges： Humphreys
Filed Date： 12/22/1924
Status： Precedential
Modified Date： 11/2/2024
Where a judgment has been entered and becomes final, it cannot be opened and a new trial granted at a subsequent term. 168 S.W. 129;
Appellant and his co-defendants were convicted in the mayor's court upon the charge of transporting liquor, and appellant was also convicted upon the charge of speeding. Each case was duly appealed to the circuit court of said county, and separately docketed. Bill Hughen entered a plea of guilty in the circuit court to the charge of transporting, and was fined. Appellant and his brother were tried upon the transporting charge and acquitted, on November 5, 1923. On November 7, 1923, the charge of speeding pending against appellant was continued for the term, by consent of the parties. On July 21, 1924, it was discovered by the court that, in entering the judgment of acquittal in the transporting charge against appellant and his brother, on November 5, 1923, the clerk had written the word "speeding" following the word "transporting" in the caption of the judgment. When the discovery was made, the court, on his own motion, without a petition by appellee and without notice to appellant or his attorney, made a finding that the clerk erroneously inserted the word "speeding" in the caption of the judgment of acquittal, and ordered the word "speeding" stricken from the caption. The word "speeding" did not appear in the body of the judgment of acquittal. On the following day the court notified appellant's attorneys of his action in striking the word "speeding" from the caption of the judgment of acquittal for transporting liquor, whereupon the attorneys moved the court to strike the order finding that the clerk erroneously inserted the word "speeding," because the correction was made without petition by appellee and without notice to appellant, and entered a plea of former acquittal, making the judgment of acquittal as entered on November 5, 1923, the basis thereof. The court overruled the plea of former acquittal, over appellant's objection and exception. *Page 142
The only assignment of error relied upon by appellant in his argument for a reversal of the judgment is the trial court's action in refusing to sustain his plea of former acquittal. His contention is that the court had no right to make the order without a petition being filed by appellee requesting it, and without notice to appellant. He did not challenge the correctness of the finding of the court that the clerk had erroneously inserted the word "speeding" in the caption of the judgment of acquittal. If the word "speeding" was erroneously inserted by the clerk in the caption, appellant was not prejudiced by the order striking said word. Unless prejudiced by the nunc pro tunc order entered by the court, appellant was in no position to ask the court to strike the order. After the word "speeding" was stricken from the caption, the judgment of acquittal, on its face, did not embrace the charge of speeding and was not available in support of appellant's plea of former acquittal. There was no merit in appellant's motion to strike the correcting order unless he had alleged and offered to prove that the court erred in finding that the insertion of the word "speeding" by the clerk was erroneous. As stated above, appellant did not challenge the correctness of the court's finding, but simply relied upon the fact that it was entered by the court without petition and notice, hence no prejudice resulted to appellant on account of the nunc pro tunc order.
No error appearing, the judgment is affirmed. *Page 143