Gamble v. Daugherty

Sherwood, C. J. 1. The writ of error was sued out in time, as the judgment was rendered April 23d, 1874, and the writ issued April 3rd, 1877. 2. Th.e judgment, when entered from the minute book of the clerk and the papers and files in the cause, related to the date of the brief memorandum made by the clerk; but any other evidence thau the papers and files in the cause, or something of record, or in the minute book, or on the judge’s docket, could not be received as constituting a basis to amend by. Although oral evidence is received by the courts of some States, for the purpose mentioned, this court has constantly refused to admit it, and we will not now depart from our uniform line of decisions. And it was perfectly competent, notwithstanding the pendency of the writ of error, for the court below to proceed to amend its judgment in accordance with the rule and [602] from the sources just announced. This court at one time» as, for instance, in Ladd v. Couzins, 35 Mo. 513, held a different doctrine, but subsequent decisions assert that entries nunc pro tunc can be made pending an appeal or writ of error, as, in contemplation of law, the entry finally made by order of the court was originally ordered to be entered, but was omitted through neglect or inadvertence. 3. If it be true, as alleged, that the death of Martha J. Gamble was suggested, (though no suggestion of the sort appears in the record,) it was clearly improper to allow the cause to proceed without taking the statutory steps to bring in her successors in interest. R. S. 1879, § 3663, et seq. The record, however, shows that one, at least, of the plaintiffs had died, and if so, it was manifestly improper as above seen to proceed without bringing in the proper party or parties. The petition shows that Martha J. Gamble owned three-quarters of the land sued for, and the wife of Thomas Leonard, one-quarter, so that if either Martha J. Gamble, or Mrs. Leonard had died prior to December 2nd, 1873, a judgment at the April term, 1874, for the recovery of the whole land, was clearly erroneous. 4. There is yet another ground upon which the judgment is erroneous. It professes to correct a mistake in a deed, presumably for the land in suit. None of the pleadings bad requested such correction to be made, and it was not proper for the court to attempt to make such correction, and it is quite evident that the correction referred to was not “inadvertently made,” since similar words are employed in the. minute book of the clerk, and then, after the attention of the court had been especially called to the matter of the nunc pro tunc entry, we find the error repeated ; we cannot, therefore, reject those words in relation to the correction of the deed as surplusage. For the errors mentioned, the judgment will be reversed and the cause remanded. All concur.