Opinion
No. 7153.
April 9, 1953.
APPEAL FROM THE CIRCUIT COURT, BARRY COUNTY, REX V. McPHERSON, J.
John O. Sanders, Cassville, for appellant.
Royle Ellis, Cassville, for respondent.
This appeal is from the judgment of the trial court overruling appellant's motion for an order nunc pro tunc to amend a judgment rendered in an action brought by appellant for separate maintenance.
January 16, 1951, appellant filed an action for separate maintenance in the Circuit Court of Barry County, Missouri. The petition alleged that appellant and respondent were legally married in the State of Kansas. In the second paragraph of the petition it pleads general indignities as a basis for the cause of action.
July 6, 1951, the following record was made by the court relative to the suit for separate maintenance. First it shows that appellant refiled her motion for suit money and attorney's fee and the court allowed $100 suit money and $100 attorney fee. Then the record is as follows:
"Now on this day comes plaintiff, by her attorney, John O. Sanders, and comes defendant, by his attorney Royle Ellis, and the evidence having been heretofore heard by the Court and said cause taken under advisement, and the Court having fully considered the evidence, all things being seen and understood, finds the issues in favor of the defendant and against the plaintiff upon plaintiff's cause of action.
"The Court finds that the defendant did not treat plaintiff with such indignities and cruelties as to make it impossible for plaintiff to live with defendant, and that defendant did not abandon plaintiff either actually or constructively as alleged in plaintiff's petition herein.
"It is therefore, ordered, considered and adjudged by the Court, that the plaintiff take nothing by her suit herein against the defendant, but that the same be and is hereby dismissed and that the defendant, George L. Ackley, go hence without delay and have and recover of and from the plaintiff, Perl Ackley, all costs laid out and expended for which execution may issue."
February 11, 1952, the following judgment was entered by the clerk of said court:
"Now on this day comes plaintiff, by her attorney John O. Sanders, and comes defendant, by his Attorney, Royle Ellis, and the evidence having been heretofore heard by the Court and said cause taken under advisement, and the Court having fully considered the evidence, all things being seen and understood, finds the issues in favor of the defendant and against the plaintiff upon plaintiff's cause of action.
"The Court finds that the defendant did not treat plaintiff with such indignities and cruelties as to make it impossible for plaintiff to live with defendant, and that defendant did not abandon plaintiff either actually or constructively as alleged in plaintiff's petition herein.
"It is therefore, ordered, considered and adjudged by the Court, that the plaintiff take nothing by her suit herein against the defendant, but that the same be and is hereby dismissed and that the defendant. George L. Ackley, go hence without delay and have and recover of and from the plaintiff, Perl Ackley, all costs laid out and expended for which execution may issue."
Appellant, in her brief, on page 4 thereof, makes this statement:
"This judgment-entry is the bone of contention in this appeal. It was immediately attacked by plaintiff with a motion for an order, nunc pro tunc, to correct it. This motion submitted a substitute judgment-entry, as follows:
"`Judgment-Entry
"`Now on this day comes plaintiff, in person, and by her attorney, John O. Sanders; and comes also defendant, in person, and by his attorney, Royle Ellis, and the evidence having been heretofore heard by the court and said cause taken under advisement, and the court now having fully considered the evidence, all things being seen and understood, finds that plaintiff and defendant are legally husband and wife, but that the indignities as alleged and proven by plaintiff fail to show that defendant has abandoned plaintiff, either actually or constructively. Also, plaintiff having refiled her motion for suit money and attorney fee, the court finds that plaintiff is entitled to an allowance for suit money and attorney fee.
"`It is, therefore, considered, adjudged, and ordered that the issue of abandonment herein be resolved against the plaintiff and in favor of the defendant; that the issue of marriage be resolved against the defendant and in favor of the plaintiff; and that the plaintiff have and recover of and from the defendant sums of $100 for attorney fee for John O. Sanders and $100 for suit money; and that plaintiff's petition be and the same is hereby dismissed.'"
Appellant's motion for an order nunc pro tunc was, by the court, overruled.
Appellant's first contention is that the trial court erred because the issue of marriage between plaintiff and defendant was raised by the pleadings and not made a part of the judgment; that since there was a general denial to the allegation of marriage, that issue was adjudicated.
Appellant misconceives the issue raised by her motion for an order nunc pro tunc to correct a judgment. In Abbott v. Seamon, Mo.App., 217 S.W.2d 580, 586, this court states the law:
"In Vaughn v. Kansas City Gas Co., supra [236 Mo.App. 669], 159 S.W.2d [690] loc.cit. 693, the court states the following proposition of law: `Our courts have frequently held that an order correcting nunc pro tunc a judgment can be made at a subsequent term, but that it must be made upon evidence furnished by the papers and files in the cause, or something of record, or in the clerk's minute book, or on the judge's docket. That it can only be employed to correct a clerical error or a misprision of the clerk.' In Wiggins v. Perry, 343 Mo. 40, 119 S.W.2d 839, loc.cit. 842, 126 A.L.R. 949, the court states the rule of law thusly: `"A nunc pro tunc entry can only be employed to correct a clerical mistake or misprision of the clerk." Such an entry cannot be invoked to "correct a mistake or oversight of the judge, nor be used to correct judicial errors, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the judge intended to render." * * there must be support therefor from the pleadings, or from the record of the decree, or from the clerk's minutes or from the minutes or notations kept by the judge on his docket, or from some proper paper or file in the case.' In Cordes v. Femmee [Femmer] Mo.App., 289 S.W. 13, loc.cit. 15, the court declared the law as follows: `"A nunc pro tunc judgment, at a subsequent term, can only be made upon evidence furnished by the papers and files in the cause, or something of record, or in the clerk's minute book, or on the judge's docket; in other words, a nunc pro tunc entry can only be employed to correct a clerical mistake or misprision of the clerk. It can never correct a mistake or oversight of the judge, nor be used to correct judicial errors, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the judge intended to render."' It was stated in Wood's Pharmacy v. Kenton, 50 Ariz. 53, 68 P.2d 705, 706, that, `The office of a nunc pro tunc entry is not to make an order now for then, but to enter now for then an order previously made.'"
So the law is that the purpose of the nunc pro tunc entry is to correctly evidence upon the records of the court a judgment, decree or order actually made by the court, but, for some reason, not entered of record at proper time. Such a proceeding can only be employed to correct a clerical mistake or misprision of the clerk. It cannot be invoked to correct an oversight of the judge or to correct judicial error nor to render a judgment different from that actually rendered even though the judgment rendered was not the judgment intended to be rendered by the court.
So, it is clear, from the minutes of the court, that the judgment rendered by the clerk and entered of record, complained of herein, was the exact judgment rendered by the trial court. Nowhere does the judgment, as shown by the minutes of the court, or the entries made by the clerk, indicate that the court passed upon the question of the validity of the marriage between appellant and respondent.
It is not enough for appellant to show that, before the judgment rendered by the court could be legal, the court must find that there was a legal marriage. That evidence does not show a clerical mistake or misprision of the clerk. It might show a mistake or oversight of the judge but such judicial errors cannot be corrected by a proceeding for an order nunc pro tunc.
We hold, in this case, that there is no evidence in the pleadings or in the written records, either in the court's minutes or the minutes of the clerk, to show that there was a clerical mistake or misprision of the clerk in the entry of the judgment complained of and, certainly, there was nothing in the record to justify the entry of the judgment appellant insisted upon.
Judgment affirmed.
VANDEVENTER, P. J., and BLAIR, J., concur.