This is a companion case to State ex rel. Burton v. Bagby,ante page 482, 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 Circuit 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 *Page 536 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 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, Revised Statutes 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 court rejecting the codicil and pleads the 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 testimony *Page 537 of the witness that he did not attest the 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 formalCorrecting correctness by the incorporation therein of the willJudgment. and the omission therefrom of the codicil. Plaintiff, therefore, under the allegations of his petition must be limited in his application for the correction of the error as to mistake or, as archaically expressed, misprision.
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. The 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. l.c. 363; Harrison v. State, 10 Mo. l.c. 689; State v. Clark,18 Mo. 432; Stacker v. Cooper Circuit Court, 25 Mo. 401; Robertson v. Neal, 60 Mo. 579; Davison v. *Page 538 Davison, 207 Mo. 702.] Such amendments as are here authorized, are within the purview of the statute, Sec. 1277, Revised Statutes 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; 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. l.c. 371; Belkin v. Rhodes, 76 Mo. l.c. 651; Ross v. Railroad, 141 Mo. l.c. 395.]
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. Ry. Co. v. Holschlag, 144 Mo. 253; Young v. Young, 165 Mo. 624; Williams v. Sands, 187 S.W. 1188; In re Fulsome's Est., 193 S.W. l.c. 620; State ex rel. Aiken v. Buckner, 203 S.W. 242.]
This record nowhere discloses any omission from the judge's minutes, the clerk's entries or any paper filed in the case which would authorize the nunc pro tunc entry prayed for by the plaintiff; nor, in fact, does the evidence aliunde afford any proof of such error. It is sufficient, however, for the determination 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 overruling plaintiff's application is sustained, which results in an affirmance of the judgment. All concur. *Page 539