Witten v. Robison

Hall, J. The only matter which we can consider on this appeal is the action of the court below in rendering judgment on a motion for a judgment nunc pro tunc. The court ordered the entry of a judgment on the verdict in favor of plaintiff as of the term at which it should have been made. If in so ordering the court erred, the judgment entered should be reversed. But, on the other hand, if the action of the court in that respect was correct, we cannot consider the errors complained of during the trial of the case which resulted in the verdict, because the appeal from the judgment ordered and not entered was dismissed by the appellant, and is in no sense pending in this court. This appeal, now before us, is not an appeal from a judgment for the first time ordered by the court on the verdict returned by the jury, but is an appeal from the judgment of the court directing that the clerk enter the judgment on the verdict which was ordered by the court at the term during which the verdict was returned. , In other words if the judgment of the court on the motion was correct, it is because the court rendered a judgment at the October term, 1883, on the verdict, which the clerk failed to enter ; from the judgment so rendered and not entered the defendant took an appeal and dismissed it, and, hence, that appeal is no longer pending; this appeal is from the judgment of the court directing .the entry of the j udgment rendered, but not entered, at the October term, 1883, and, hence, on this appeal we can consider nothing but the action of the court in making such direction. The question, therefore, is, did the court properly order the judgment nunc pro tunc ? The motion and notice are not open to the objection that they are indefinite and uncertain. They clearly stated that a judgment had been rendered in favor of plaintiff against defendant at the October term, 1883, for the sum of five hundred dollars, and that the clerk had failed to enter such judgment; and they clearly [534] stated that the amendment of the record sought was to have that judgment entered of record. Under the established rule in force in this state, whatever the rule on the subject may be elsewhere, to justify the court in directing the entry of the judgment nuno pro tunc, it was essential for the records of. the court to show two things : (1) that the court had rendered a judgment in this case at the October term, 1883 ; (2) that the judgment rendered was the judgment, the entry of which was directed. It is not necessary that the records of the court should show, in order to enable it to direct a judgment nuno pro tuno, in express terms that such judgment had been rendered. If the facts shown by the records are- such as to reasonably and fairly carry conviction that the judgment was in fact rendered, that is sufficient. In this case no judgment at all was entered. These facts appearing of record, viz., the verdict of the jury, the filing and overruling of the motions for new trial, and in arrest of judgment, were such as to necessarily and as a legal consequence result in the judgment directed nuno pro tuno. From these facts, in connection with the fact that no otheir judgment was entered of record, I think that it must.be presumed that the court ordered the judgment which was their necessary consequence. Railroad v. Mockbee, 63 Mo. 350; Jones v. Hart, 60 Mo. 358, opinion of Sherwood, J. Judgment-affirmed. Ellisoh, J., concurs; Philips, P. J., dissents.