Mann v. Schroer

Martin W. Mann, in Error v. John G. Schroer, in Error

Mann v. Schroer, 50 Mo. 306 (1872)

Court: Supreme Court of Missouri · State Highest Courts
Decided: July 15, 1872
Judges: Adams, Other
Citations: 50 Mo. 306

Headnotes

1. Mechanics’ lien — Petition — Amendment — Ninety day limitation. — An amended petition correcting the original description in a suit on a mechanic’s lien is merely a continuance of the original action, and where that was brought within ninetY days after filing the lien, plaintiff is not barred by the lien limitation law. 2. Judgment nunc pro tunc — Motion for — Notice of, etc. — Where a clerk, in entering up judgment on a mechanic’s lien, omitted to make a special judgment, the entry of a special judgment correcting the mistake nunc pro tunc, without notice to defendant, is not such an error as would render the judgment void or could be taken advantage of in a collateral proceeding. But where the case is directly brought up by writ of error, the failure of plaintiff to notify defendant of his motion to correct the judgment will render it proper to reverse and remand the cause, with leave to plaintiff to renew his motion.

Summary

Error to Henry Circuit Court. I. The original petition, so far as enforcing said pretended lien was concerned, was totally defective, and no special judgment could have been rendered thereon. That being the case, the law does not allow the filing of an amended petition constituting an entirely new cause of action, after it is too late to bring said action in an original suit. II. The general judgment rendered in this cause in the Circuit Court operated to destroy, and release the property from, the lien (if any there W'as at that time), and that general judgment never having been disturbed, vacated or set aside, no lien on the property has ever attached the second time by virtue of the subsequent proceedings of the court below pretending to correct the original judgment. IH. There certainly was no lien on the real estate described in .the amended petition during the six months intervening from the rendition of the general judgment to the time of the pretended ■special judgment; and in the meantime the. property changed Lands. Can it be contended that a new lien could be created by the court six months thereafter ? 1Y. In this case it Avas impossible to except or object to the .proceedings in the court in the attempt to reform or correct the ■original judgment, as no notice was given to the defendant in the court below or his attorney, and he knew nothing of the proceedings until after the judgment of the court. relied upon Gibson v. Chouteaii’s Heirs, 45 Mo. 171.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Adams

Text extracted by OCR from a scanned original; check the original for exact wording.

Adams, Judge,

delivered the opinion of the court.

This Avas an action brought on a mechanic’s lien. In his original petition the plaintiff misdescribed the property on which he filed the lien. At a subsequent term, and more than ninety days after the lien was filed, he filed an amended petition correcting-the description. The defendant filed answer, and among other .things set up that the suit Avas not commenced within ninety days after the lien Avas filed.

The original petition was filed and the Avrit of summons was issued Avithin the ninety days, and the amended petition Avas only a continuance of the original proceeding, and not the commencement of a neAY action. The court tried the case at the October term, 1870, and gave judgment for the plaintiff. No motion was made to set aside the judgment, or for a neAY trial, nor Avas any bill of exceptions saved.

The clerk, however, in entering up the judgment, omitted to make it a special judgment on the lien sued on, and it stood thus until the next term of the court, AYhen the plaintiff filed a motion to have an entry nunc pro tunc of the proper judgment, correcting the clerical mistake in the original judgment; and such judgment Avas accordingly entered as of the last term. It does •not appear from the record that the defendant had any notice of *308 this motion or of the action of the court upon it. After the end of a term at which a final judgment is rendered, the defendant is no longer in court for any purpose connected with such judgment. But the entry of this nunc pro tunc judgment, without notice to the defendant, is not süch an error as would render the judgment void, or as could be taken advantage of in a collateral proceeding» The case, however, has been brought before us by writ of error, and we are called upon to act directly upon the record. While it is perfectly competent at a subsequent term to make such entries in furtherance of justice, we think the defendant ought to be notified to show cause why such entry should not be made. He may be able to show that the judgment has been satisfied, and therefore that such entry might be unnecessary. But unless good cause is shown, the court undoubtedly ought to make the entry.

As the defendant was not notified and did not appear, this nunc pro tunc judgment is reversed and the cause remanded, .with leave to the plaintiff to renew his motion for a nunc pro tunc judgment.

The other judges concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 13 cases

View all citing references →

Relies on it most ⓘ

Pulitzer Publishing Co. v. Allen113 S.W. 1159 (Mo. Ct. App. 1908)
Zach McGuire v. Kenoma, LLC447 S.W.3d 659 (Mo. 2014)
Elisabeth H. Luedde v. Henry W. Luedde211 S.W.2d 513 (Mo. Ct. App. 1948)
Philip Gruner & Bros. Lumber v. Hartshorn-Barber Realty & Building Co.154 S.W. 846 (Mo. Ct. App. 1913)
Gensler v. Nicholas115 N.W. 458 (Mich. 1908)
Conrath v. Houchin34 S.W.2d 190 (Mo. Ct. App. 1930)

Most recent

Zach McGuire v. Kenoma, LLC447 S.W.3d 659 (Mo. 2014)
Elisabeth H. Luedde v. Henry W. Luedde211 S.W.2d 513 (Mo. Ct. App. 1948)
Conrath v. Houchin34 S.W.2d 190 (Mo. Ct. App. 1930)
Philip Gruner & Bros. Lumber v. Hartshorn-Barber Realty & Building Co.154 S.W. 846 (Mo. Ct. App. 1913)
Kibby v. Hensel105 P. 696 (Kan. 1909)
Pulitzer Publishing Co. v. Allen113 S.W. 1159 (Mo. Ct. App. 1908)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

No citations to other opinions in this database were found.

`/`	Focus the search box
`j` `k`	Next / previous result
`Enter`	Open the selected result
`x`	Add / remove the selected result from the download list
`n` `p`	Next / previous search term in a case
`c`	Copy the citation of the current case
`+` `−`	Larger / smaller reading text
`?`	Show this list