STATE ex rel. BURTON v. BAGBY, Judge. the judge and ex officio clerk of the probate

(Supreme Court of Missouri, Division No. 2. thereto: June 23, 1921.)

1. Judgment 525-Recitals conclusive as probate within and for the county of Howard to issues involved.

Where the right to probate instrument pur-J. F. Chancellor, subscribing witnesses to the porting to be a codicil was not in issue in suit in circuit court to test the validity of the will and to have it either probated or rejected, the codicil was not removed from the jurisdiction of the probate court.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

"The court approves the probate of the will of said deceased on the testimony of C. I. Smith, Harry G. Herndon, Wallace Estill, Jr., and William J. Boggs, subscribing witnesses indorsed thereon, and declares said will established as the last will and testament of said Benjamin E. Nance, deceased, late of Howard county, Missouri, but rejects the codicil of said will by reason of the fact that John H. Herndon, one of the subscribing witnesses, did not attest said will as a witness in the presence of the testator, nor in the presence of the other subscribing witness."

ton's petition, or in effect denied the peremptory writ prayed for. After a formal finding of the facts, the court, in dismissing the petition, entered of record the following order:

"Wherefore, the court doth find that if both the said will and the said codicil were contested in the circuit court of Howard county in the proceeding brought in said court as aforesaid, the judgment and mandate of said circuit court on file in this court are by statute final, and this court has no jurisdiction to entertain relator's petition; that if the said codicil was not contested but only the will, the judgment of this court in term, on file, rejecting the codicil, was both regular and binding, and this court has no jurisdiction to reopen the case. One or the other alternative is necessarily true. the petition is dismissed.”

Hence

I. Under the facts as set forth in this record, it is not deemed necessary to discuss the somewhat technical questions interposed by the respondent in opposition to the issuance of the writ herein, viz.: As to whether this proceeding seeks to require the probate court to enter a particular judgment; or if it is sought to have the court set aside a judicial act; or if the relator has another remedy that he should have resorted to. In our opinion the matter at issue is clearly defined and conclusively determined in the judgment of the circuit court dismissing the relator's petition and thus denying the per

sustained by the record, the authenticity of which does not admit of question. The reasons in support of the judgment flowing from those facts are so elementary in their character that their statement, without more, demonstrates their correctness. They are as follows:

In May, 1919, Russel E. Burton, the relator herein who had attained his majority, filed a petition in the Howard county probate court, in term time, asking that testimony be heard to authorize the probating of the codicil of the will; after hearing the testimony of the subscribing witnesses and others, the court dismissed the petition. A motion to set aside the order of dismissal was made and overruled. The action at bar was thereupon, on July 25, 1919, brought in the circuit court of Howard county to compel the probate court to either probate or reject the codicil. The probate judge filed a return thereto setting up the probating of the will and codicil by the judge and ex officio clerk of said probate court in vacation and the subsequent order of said court rejecting said codicil, and for further return stated that the codicil was not taken out of the jurisdiction of the probate court by the contest proceed-emptory writ. That judgment, it appears, is ings in the circuit court; that the codicil was not copied in the contest petition nor produced in court at the hearing of the cause; and that the recitals of the judgment rendered therein are conclusive in law against everything except a new trial or an appeal; and further pleading alternatively, stated that if the codicil was not removed from the jurisdiction of the probate court by the contest proceeding the judgment rejecting the codicil could not be questioned in this action; and if the codicil was removed by the contest proceeding the probate court has no more jurisdiction now than in 1902 and that the judgment rendered by the latter court in July, 1902, imports verity until set aside by a direct proceeding. After alleging the lack of authority to probate a codicil separate and apart from the will, it is further stated in the return that the circuit court has no power to compel the probate court to vacate and annul its judgment dismissing plaintiff's petition because that judgment has already been rendered; and that mandamus does not lie to vacate a judgment already entered, but only to compel the inferior court to render a judgment when under a clear legal duty it refuses so to do.

In October, 1919, the cause coming on for hearing in the circuit court, the respondent, probate judge, objected to the admission of any testimony, which objection was sustained, and the court dismissed the relator Bur

[1-4] The codicil so far as the record discloses was not made an issue in the suit to contest the will. It was not copied into the petition in that suit, offered in evidence, or referred to in the judgment. The recitals of the judgment are conclusive. If therefore the question as to the right of the relator to probate the codicil was not an issue in that suit, it was not removed from the jurisdiction of the probate court, and the judgment of the latter rejecting it from probate cannot be assailed in this action. If jurisdiction over the codicil by the probate court was removed by the suit to contest the will, that court has no more jurisdiction now than it had after the commencement of the will contest in the circuit court, and the writ, if made peremptory in this proceeding, would be futile. But, whether the jurisdiction over the codicil was removed or not, the judg ment of the probate court in July, 1902, rejecting the codicil from probate, being regu-. lar on its face, imports verity until set aside by contest or direct proceedings, but not in the manner here sought to be invoked. Either of these reasons is sufficiently cogent to

sustain the action of the circuit court in dismissing the relator's petition and denying the peremptory writ, and its judgment in that behalf is therefore affirmed.

All concur.

(288 Mo. 531)

BURTON v. BURTON et al. (No. 22413.)

(Supreme Court of Missouri, Division No. 2. June 23, 1921.)

1. Judgment

326-When court can amend judgment by nunc pro tunc entry during subsequent term.

Under Rev. St. 1919, § 1277, a court has power at a subsequent term to correct or amend its judgment, but such power is limited to cases where there has been an omission to enter such a judgment as the court actually rendered, and not where the court has omitted to make an order which it might or ought to

have made.

2. Judgment 326-Court in amending judgment at subsequent term must be governed by judge's minutes, clerk's entries, papers on file, and not by judge's recollection or outside evidence.

The court in amending its judgment at a subsequent term by a nunc pro tune entry to make the judgment conform to that actually rendered must be governed by the judge's minutes, clerk's entries, or some papers on file in the case, and not by the judge's recollection of what took place at the trial or outside evidence.

contest the will of said Nance, which had been brought and determined in the circuit court of Howard county and had resulted in a decree sustaining the will. The purpose of the instant suit is to amend the judgment in the will contest case that the same may show that the paper writing found in said proceeding to constitute the will included, not only the will itself as set forth at length in the decree in that suit, but embraced as well the codicil which it was prayed should also be set forth in the decree. The respondents, for their answer to said petition, admitted that the will and codicil were both admitted to probate by the judge and ex officio clerk of the probate court of Howard county in vacation, but that afterwards said court in term time confirmed the action of the court in vacation, under section 517, R. S. 1919, as to the probating of the will, but rejected the same as to the probating of the codicil. After setting forth the order of the probate court in that behalf, it is alleged that the decree of the circuit court does not contain any reference to the codicil, but states that said decree is regular and that the allegations therein, as to its regularity and the propriety of its findings, are, in every respect, correct; and the authority of the court to make the proposed amendment is denied on account of the alleged lack of evidence of any clerical error or other mistake or irregularity on the part of the court; that the circuit court at the time had jurisdiction of the subject-matter and the persons; and that the same is final. The reply sets up the order of the probate

Appeal from Circuit Court, Howard Coun- court rejecting the codicil, and pleads the ty; Charles T. Hays, Special Judge.

Suit by Russel E. Burton against Benjamin N. Burton and others. Judgment of dismissal, and plaintiff appeals. Affirmed.

Paul P. Prosser, of Denver, Colo., and A. H. Waller and M. J. Lilly, both of Moberly, for appellant.

filing of the will contest which it is alleged consisted of the original will and codicil thereto annexed and that in consequence thereof the jurisdiction of the subject-matter, namely, the will, was divested out of the probate court and vested in the circuit court, and that the order of the probate court rejecting the codicil was void; that the testi

John Cosgrove, of Boonville, and R. M. mony of the witness that he did not attest the Bagby, of Fayette, for respondents.

WALKER, J. This is a companion case to State ex rel. Burton v. Bagby, 232 S. W. 474, decided at this term, and should be read in connection with same.

That suit was by mandamus to compel the probate court of Howard county to probate or reject a codicil to the will of one Benjamin E. Nance. The eircuit court of Howard county dismissed the relator's petition in that proceeding, thereby refusing to grant the peremptory writ, and, upon appeal, we affirmed its judgment.

In the instant case, Russel E. Burton, the relator in the mandamus proceeding, brought suit against the other legatees of the will of said Nance to have the circuit court of Howard county, by a nunc pro tunc entry of record, amend a judgment rendered in a suit to

codicil in the presence of the testator was false and was procured through fraudulent means; that, in fact, he did subscribe to said codicil in the presence of the testator and of others.

After the hearing of testimony, documentary and otherwise, and the disposition of dilatory pleas, not necessary to be particularly referred to here, the court found from the minutes, files, court records, and other proper evidence that the decree rendered in the will contest correctly sets forth in its entirety the findings and the judgment rendered by the circuit court in the will contest, and plaintiff's petition was dismissed. From this ruling and judgment he appeals.

I. There was no evidence of misrepresentation or fraud in the rendition or entry of the judgment herein; it conformed to the pleadings, and emphasis was lent to its formal

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

correctness by the incorporation therein of or any paper filed in the case, which would the will and the omission therefrom of the codicil. Plaintiff, therefore, under the alle gations of his petition must be limited in his application for the correction of the error as to mistake or, as archaically expressed, misprision.

The

[1] While a court has power at a subsequent term to correct or amend its judgment, this power is limited to cases where there has been an omission to enter such a judgment as the court actually rendered. correction thus made may result in an amendment of the judgment as entered by the clerk; but, after all, it amounts to nothing more than the correction of a clerical error or omission and the consequent entry of the judgment as really rendered. This power has been recognized from the earliest times, and frequent instances of the exercise of same are found in our reports. Hanly v. Dewes, 1 Mo. 16; Hickman v. Barnes, 1 Mo. 156; Mullanphy v. Phillipson, 1 Mo. 188; Hyde v. Curling, 10 Mo: loc. cit. 363; Harrison v. State, 10 Mo. loc. cit. 689; State v. Clark, 18 Mo. 432; Stacker v. Cooper Circuit Court, 25 Mo. 401; Robertson v. Neal, 60 Mo. 579; Davison v. Davison, 207 Mo. 702, 106 S. W. 1. Such amendments as are here authorized are within the purview of the statute. Section 1277, R. S. 1919.

Wherever, therefore, the clerk has failed to enter up a judgment or enters up a wrong judgment, and the order is sought simply that the proper entry may be made, the power may be exercised; but when the court has omitted to make an order which it might or ought to have made, it cannot be made at a subsequent term by a nunc pro tunc entry. Gibson v. Chouteau's Heirs, 45 Mo. 171, 100 Am. Dec. 366; Turner v. Christy, 50 Mo. 145; Priest v. McMaster, 52 Mo. 60; Dunn v. Raley, 58 Mo. 134; Fletcher v. Coombs, 58 Mo. 430; State ex rel. Graves v. Primm, 61 Mo. 170; Wooldridge v. Quinn, 70 Mo. loc. cit. 371; Belkin v. Rhodes, 76 Mo. loc. cit. 651; Ross v. R. R., 141 Mo. loc. cit. 395, 38 S. W. 926, 42 S. W. 957.

authorize the nunc pro tunc entry prayed for
by the plaintiff; nor, in fact, does the evi-
dence aliunde afford any proof of such error.
It is sufficient, however, for the determina-
tion of this case, that there is an absence of
error in the minutes, files, or record entries,
and the action of the circuit court in overrul-
ing plaintiff's application is sustained, which
results in an affirmance of the judgment.
All concur.

BERRY v. ROYSTER. (No. 13839.)

(Kansas City Court of Appeals. Missouri.
Feb. 7, 1921. Rehearing Denied
May 23, 1921.)

I. Trial

141-Direction of a verdict not erroneous because there was parol evidence in the case.

In an action to recover a down payment made under contract for the purchase of real estate, where defendant admitted that he received a check for the amount but asserted that it was for his principal, and there was no question that the contract which provided for return in event it was not consummated was not carried out, the direction of a verdict for plaintiff cannot be deemed erroneous merely because there was parol testimony in the case.

2.

Evidence 424-The rule against contra

dicting a written contract does not apply to one not a party.

The rule against contradicting a written contract does not apply to one who is not a party thereto.

419(11) - Consideration clause is open to explanation or contradiction.

The consideration clause in a written conparol testimony, and it may be shown that the tract is open to contradiction or explanation by consideration was paid by a third person.

5. Principal and agent 190(2) Exclusion of testimony that contract was not consummated because of purchaser's default improper in action to recover down payment from agent.

[2] In the exercise of this power the action of the court must be based on the judge's minutes, the clerk's entries, or some papers on file in the case, and not upon the judge's recollection of what took place at the trial or upon outside evidence. Saxton v. Smith, 50 Mo. 490; Priest v. McMaster, 52 Mo. 60; State v. Jeffors, 64 Mo. 376; Fetters v. Baird, 72 Mo. 389; Belkin v. Rhodes, 76 Mo. 643; Mo., etc., Ry. Co. v. Holschlag, 144 Mo. 253, Where a contract for the sale of land pro45 S. W. 1101, 66 Am. St. Rep. 417; Young vided for return of the down payment in event v. Young, 165 Mo. 624, 65 S. W. 1016, 88 Am. title failed or the contract was not consummatSt. Rep. 440; Williams v. Sand, 187 S. w.ed, and one other than the real purchaser 1188; In re Fulsome's Est. (App.) 193 S. W. loc. cit. 620; State ex rel. Aiken v. Buckner (App.) 203 S. W. 242.

This record nowhere discloses any omission from the judge's minutes, the clerk's entries,

brought an action to recover from the seller's

agent a down payment, such agent was entitled to show that the contract was not consummated because of the default of the real purchaser, regardless of what might have been the rights of the vendor.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

6. Principal and agent 136(4) One re- be immediately returned to purchaser in the ceiving payment purely as agent who delivered event that the title to the land should fail, or it to his principal not liable. the sale be not consummated."

Where defendant signed a contract for the sale of lands as agent of the vendor and received the down payment which he delivered to the vendor, he is, in an action to recover repayment, the contract not having been consummated, entitled to show such fact, for he was no more than a messenger under the circumstances.

7. Evidence 317(7)-Evidence that defendant received payment as agent not objectionable as hearsay.

Where defendant signed a contract as agent of the vendor and on receiving a check for a down payment transmitted it to the vendor, evidence to that effect is admissible, over objection that it was hearsay, in an action on be

half of the purchaser to recover the down pay

ment; the contract not having been consummated, etc.

Plaintiff testified that after the contract was signed he handed defendant a check for $1,000 and admitted that it was the check of one L. C. Hamilton, who, it is apparent from the record, was the real purchaser. The record does not disclose to whom this check was made payable, whether to defendant or to Chrisman.

Defendant denied that he got $1,000 or any other sum from plaintiff at any time, but testified that, as agent of Chrisman, he received Hamilton's certified check for $1,000 and took it to Chrisman; and then offered to show that Chrisman directed him to take the of getting the abstract, surveys, etc., which proceeds of the check and pay the expenses the contract of sale required Chrisman to furnish, and the agent's commission. The

Appeal from Jackson County Court; Dan- court, however, would not allow defendant iel E. Bird, Judge.

"Not to be officially published."

Action by C. R. Berry against William E. Royster. From a judgment for plaintiff, de

fendant appeals. Reversed and remanded.

Scarritt, Jones, Seddon & North, of Kansas City, for appellant.

to show what Chrisman directed, on the ground that Chrisman was dead and the evidence would be hearsay.

Defendant offered in evidence two letters

from Berry and one from Hamilton, the

former of which show on their face that Hamilton and not Berry was the real purchaser of the land; and the letter from Hamilton

C. C. Crow, of Kansas City, for respond-states that while his attorney is of the opin

ent.

TRIMBLE, P. J. This is an action for money had and received. The trial court peremptorily instructed the jury to return a verdict for plaintiff in the sum of $1,000 with 6 per cent. interest thereon from July 25, 1914. The jury returned a verdict for $1,000 with 6 per cent. interest from January 1, 1915, amounting to $270, or a total of $1,270. The defendant has appealed.

The petition merely alleged that defendant is indebted to plaintiff in the sum of $1,000 for money had and received on the 24th day of July, 1914, which sum the defendant, at the time and later, promised to repay, but, though often requested, failed and refused to do. The answer was a general denial.

ion (with the requirements he asked for) "the title would be a fairly merchantable title" and did not believe that a purchaser would be molested, yet the title to accreted land is not as good as if it were patented land, and hence "I have made up my mind to call off the deal." It will be observed that the contract includes "any and all accretions thereto." These letters were also excluded, apparently on the theory that their admission would be an attempt to vary the written contract.

[1] It is urged that the court erred in giving a peremptory instruction to find for plaintiff, for the reason that a part of plaintiff's case rested in parol testimony. It is true, the contract does not recite that the $1,000 was paid, and plaintiff's parol testimony was In support of his case plaintiff offered in needed and used to show that the sale was evidence a written contract dated July 24, never consummated. But defendant admits 1914, between George Lee Chrisman "acting that the $1,000 called for in the contract was by his agent, William E. Royster," to Berry, paid, though not to him but to Chrisman; the plaintiff herein, whereby Chrisman agreed and from the nature of the questions put to to sell, and Berry to purchase, a large quan- defendant by his counsel and the answers tity of land described by proper sectional sub- thereto, as well as his attempt to show that divisions, "with any and all accretions there- the sale fell through on account of Hamilto," at $45 per acre, "one thousand dollars ton's fault, it is manifest that there is no ($1,000) of the purchase price to be paid at question but that the sale was not consumthe execution of these presents and the bal-mated, and the contract provided that, if it ance when the title is approved and warran- was not, the money was to be returned. We ty deed executed and delivered." Clause 8 of the contract provided that

"The one thousand dollars ($1,000) to be paid when this contract is signed and executed shall

are therefore not willing to say that, regardless of anything else, the court erred in granting a peremptory instruction merely because there was parol testimony in the case.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes