Skip to content

Robertson v. Neal

H. J. Robertson, in Error v. John Neal, in Error

Robertson v. Neal, 60 Mo. 579 (1875)

Court: Supreme Court of Missouri · State Highest Courts
Decided: May 15, 1875
Judges: Other, Wagner
Citations: 60 Mo. 579

Cited by 15

Headnotes

.1. Judgment — Clerical mistake — Correction nunc pro tunc. — Where the minute, entry, on a judge’s docket, shows that a judgment was taken by default, but the judgment was entered by the clerk as final, that entry may be corrected and judgment, in accordance with the facts, entered at a succeeding term.

Summary

Error to Clay Circuit Court. cited "Wagn. Stat. 1034, § 6 ; Blaisdell vs. Steamb. Pope, 19 Mo., 157; Blumenthal vs. Kurth, 22 Mo., 173; Gibson vs. Chouteau, 45 Mo., 171; 18 Mo., 432 ; 1 Or. 84; Groner vs. Smith, 49 Mo., 318; Pockman vs. Meatt, 49 Mo., 345; State vs. Clark, 18 Mo., 432; DeKalb Co. vs. Hixon, 44 Mo., 341; Hyde vs. Curling, 10 Mo., 359, and Moster vs. Moster, 53 Mo., 328 ; Downing vs. Steel, Adm’r, 43 Mo,, 309, 318; Freem. Judgm.,.p. 60, § 87; 18 Cal., 219 ; Freem. Judgm., p. 61, § 89 ; p; 47, §§ 70, 71; p. 65, § 94; p. 38, § 61; 6 Flor., 721; Freem. Judgm., p.'41, § 63; p. 34, § 56 ; p. 35, § 57; 2 How. LT. S., 263 ; 8 Pick., 415; Harbor vs. Pacific R. R., 32 Mo., 423,425, etc.; Hull vs. City of St. Louis, 20 Mo., 584, 586,587, 588 ; Blackst. Com., book 3, ch. 25, see pp. 406, 407; Ashby vs. Glasgow, 7 Mo., 320 ; Ladd vs. Cousins, 35 Mo., 513, 515; Brewer vs. Dinwiddie, 25 Mo., 851; 11 Mo., 311, 312; Freem. Judgm., p. 73, § 102; 10 Wend., 560 ; 20 Wis., 265.)

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

Opinion of the Court — Wagner

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

Wagner, Judge,

delivered the opinion of the court.

By the record in this case it appears that the plaintiff brought his suit against the defendant and at the return term, no answer having been filed, judgment was given in his behalf. The entry made by the clerk was in the form of a final judgment. At' the next term another final judgment was rendered for the plaintiff. At the succeeding term thereafter the defendant came into court and moved to set aside the second judgment, on the ground that at the term previous to its rendition, a final judgment had been entered, and that the court had no further jurisdiction of the cause, and that it was a nullity. Plaintiff then produced the minute entry on the judge’s docket, showing that the first judgment was an interlocutory judgment by default, and that the clerk had made a mistake in wilting up the same, and he asked to have a corrected judgment nunc pro time entered in accordance with the facts. The court refused this request, and then sustained plaintiff’s motion to set aside the judgment.

The court committed error. The mere clerical mistakes and misprisions of the clerk will always be amended in furtherance of justice and an entry nunc pro tunc made to conform the record to the truth, provided the record furnishes the evidence to amend by. The evidence of the order made is clear and decisive. The minute made by the judge himself says: “ interlocutory judgment by default.” It is evident the clerk made a clerical mistake, and did not write up the judgment ordered by the court. The correction should have been made-in accordance with the request of the plaintiff.

Judgment will be reversed and the cause remanded ;

the other judges concur.

How later courts describe this case

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

Cited by 15 cases

View all citing references →

Relies on it most ⓘ

Kreisel v. Snavely115 S.W. 1059 (Mo. Ct. App. 1909)
Exchange National Bank v. Allen68 Mo. 474 (1878)
Campbell v. Spotts55 S.W.2d 988 (Mo. 1932)
Evans v. Fisher26 Mo. App. 541 (1887)
Ross v. Ross83 Mo. 100 (1884)
Pulitzer Publishing Co. v. Allen113 S.W. 1159 (Mo. Ct. App. 1908)

Most recent

Campbell v. Spotts55 S.W.2d 988 (Mo. 1932)
Burton v. Burton232 S.W. 476 (Mo. 1921)
Monk v. Wabash Railroad150 S.W. 1083 (Mo. Ct. App. 1912)
Kreisel v. Snavely115 S.W. 1059 (Mo. Ct. App. 1909)
Pulitzer Publishing Co. v. Allen113 S.W. 1159 (Mo. Ct. App. 1908)
Davison v. Davison106 S.W. 1 (Mo. 1907)

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.