Webb v. Elliott

75 Mo. App. 557, 1898 Mo. App. LEXIS 470

• Court: Missouri Court of Appeals
• Decided: May 16, 1898
• Status: Published

Opinion

Ellison, J -

Plaintiffs filed a bill with the probate court of Jasper county seeking to enjoin the county court of that county from opening a public highway through the lands of plaintiffs. A temporary restraining order was made and the cause returned to the circuit court, where upon a "hearing the injunction was made perpetual. In the judgment entered the costs are taxed against plaintiffs. After the lapse of the term plaintiffs filed the present motion for a judgment nunc pro tunc, entering the costs against defendant. The trial court overruled the motion and plaintiffs appeal.

c°unScprof™“t In our opinion the trial court could have come to no other conclusion on the motion for judgment nunc pro tunc. The only competent evidence offered to show the original judgment actually rendered by the court, was the court’s docket stating “Injunction sustained & made perpetual,” and the judgment entered by the clerk in the record proper, which after making the injunction perpetual proceeds to adjudge as follows: “It is further ordered by the court, the costs of this suit be taxed against the plaintiffs and that execution issue therefor.” The reasons apparently moving plaintiffs to file this motion for a nunc pro tunc entry and for prosecuting this appeal are that since the trial court in the original proceeding found the issues for plaintiffs and made the injunction perpetual, therefore that court must not only have intended to render a judgment for costs against defendants, but that it actually did so and that the clerk by mistake entered a different judgment. There is not a particle of evidence to show that the court rendered any other judgment for costs than that entered by the clerk. It may be the court ought to have rendered judgment for the costs against defendants, but that is not the question. We must presume the court rendered the judgment entered by the clerk until the contrary is made to appear by proper evidence. Bohm Bros. v. Burns, Interpleader (decided this term).

The law authorizes a court to enter a nunc pro tunc judgment where the clerk “enters up the wrong judgment.” But the words “wrong judgment,” do not have reference to a judgment not authorized by the law, they apply only to the action of the clerk in entering a judgment the court did not render. The judgment of the court may be wrong, but it is nevertheless the right judgment for the clerk to enter. If the court actually renders a wrong judgment and the clerk enters a right judgment (both judged by a proper application of the law to the matter involved) yet, in the sense of the statute, the clerk has entered “up the wrong judgment,” for the: clerk is merely the hand of the court and must enter up the judgment rendered by the court, however erroneous it may be. From the foregoing and what we have said in the case of Bohm Bros., supra, it is clear the trial court’s action must be affirmed.

All concur.