
    SOLOMON THALER, Appellant, v. F. W. NIEDERMEYER et al., Respondents.
    St. Louis Court of Appeals,
    November 3, 1914.
    1. NUNC' PRO TUNC ENTRIES: Necessity of Documentary Evidence. An entry nunc pro tunc cannot be made after final judgment and at a subsequent term from tbe memory of tbe judge or on parol proof derived from other sources, but can be made only where the facts justifying it are shown by the judge’s minutes, the clerk’s- entries or some paper in the case.
    2. APPELLATE PRACTICE: Review: Preserving Exceptions. Exceptions do not belong in the record .proper, and exceptions so appearing are not reviewable on appeal.
    
      3. NUNC PRO TUNC ENTRIES: Sufficiency of Documentary Evidence. A recital in the record entry of a judgment of non-suit, that plaintiff excepted to the ruling which compelled him to take the nonsuit, was sufficient to justify and require the entry of an order correcting, nunc pro tunc, the bill of exceptions filed by defendants upon their appealing from an order setting the nonsuit aside, so as to show that such exception was taken and saved by plaintiff.
    4. APPELLATE PRACTICE: Disposal of Case: Entering Judgment in Appellate Court. On appeal from the refusal of the trial court to correct a bill of exceptions, mine pro tunc, so as to show that an exception was saved to the ruling which compelled plaintiff to take a nonsuit, when the main case also was pending on appeal, held that the appellate court, on determining that the bill of exceptions should have been corrected, will reverse the judgment of the lower court and enter a judgment correcting the bill of exceptions, nunc pro tune.
    
    Appeal from St. Louis City Circuit Court. — Eon. Wilson A. Taylor, Judge.
    Reversed and judgment entered by Court oe Appeals.
    
      Alexander Young and Charles E. Morrow for appellant.
    (1) A bill of exceptions, like any other part of the record, may be amended nunc pro time upon evidence furnished by the “papers and files in the cause, or something of record or in the minute book or judge’s docket as a basis to amend by.” Cambie v. Daugherty, 71 Mo. 599; Young v. Young, 165 Mo. 624; Becher v. Deuser, 169 Mo. 165; Callier v. Railroad, 158 Mo. App. 249. (2) The record proper in this case, in the very face of the judgment written by the clerk at the time, shows the exception. The exception was also shown by the memorandum prepared by the attorney for the plaintiff made and filed under the rule of the court requiring such memorandum to be made and filed by attorneys, as well as the custom testified to by the clerk that the court required such a memorandum to be made and filed by attorneys. This is sufficient evidence upon which to ‘amend the bill of exceptions nunc pro tunc because it was conclusively shown by the record and papers that the exception was in fact made.
    
      E. W. Hinton and McBaine & Ciarle for respondents.
    (1) The trial court properly refused to amend the record nunc pro tunc. There was no record, minute or paper in the case to base an amendment upon or to show appellant intended to incorporate the omitted exception in the bill of exceptions. Saxton v. Smith, 50 Mo. 490; State v. Jeffors, 64 Mo. 378; Danforth v. Railroad, 123 Mo. 196; Ross v. Railroad, 141 Mo. 390; Railroad v. Holschlag, 144 Mo. 253; Becher v. Deuser, 169 Mo. 159; State v. Libby, 203 Mo. 596; Murphy v. Cooperage Co., 168 Mo. App. 11; Shepard v. Grier, 160 Mo. App. 613; Callier v. Railroad, 158 Mo. App. 249; Coy y. Landers, 146 Mo. App. 413; Publishing Có. v. Allen, 134 Mo. App.. 229. (2) The memorandum in the handwriting of plaintiff’s attorney wasn’t competent evidence upon which to base an amendment of the record. Railroad v. Holschlag, 144 Mo. 253; Callier v. Railroad, 158 Mo.. App. 249; Becher v. Deuser, 169 Mo. 159; Chambers v. Bernasconi, 1 C. and J. 451; Smith v. Blakey, L. R. 2 Q. B. 326; Perry v. Block, 1 Mo. 484; Fabian v. Grabow, 134 Mo. App. 193; Gott v. Williams, 29 Mo. 461; Cutter v. Waddingham, 33 Mo. 269. (3) The recital by the clerk in the order of the court that an exception has been saved was an extra official act, a mere nullity and not sufficient to base an amendment upon. Nicholson v. Stevens, 123 Mo. 96; State v. Weinegard, 168 Mo.-491; Phillips v. Jones, 176 Mo. 328; Mason v. Smith, 124 Mo. App. 596.
   ALLEN, J.

This is an appeal from an order overruling a motion to amend a bill of exceptions nunc pro tunc. The action was one for fraud and deceit growing ont of a real estate transaction. The court compelled a nonsuit, but upon plaintiff’s motion, the same was set aside as to two- of the defendants, and the latter appealed. The defendants’ bill of exceptions was, on August 30,1912, duly allowed, signed and filed and made a part of the record. Such bill of exceptions showed no exception saved by plaintiff to the action of the trial court in giving peremptory instructions compelling the nonsuit; and on March 10, 1914, plaintiff filed a motion to amend the bill of exceptions nunc pro tunc, so as to show the saving of such exception by plaintiff.

Upon the hearing of this motion, it was shown by plaintiff that, immediately following the court’s ruling in question, plaintiff’s counsel filed with the clerk a memorandum stating, among other things, that plaintiff duly excepted thereto.

It further appeared that the record entry of the judgment, entered by the clerk at the time of the taking of the involuntary nonsuit, showed that plaintiff excepted to the ruling at the time. This record entry is in part as follows:

“Now at this day come again the parties hereto, by their respective attorneys, . . . and at the close of plaintiff’s case the court, . . . gave to the jury the following (instructions). ... To which action of the court in giving said instructions the plaintiff at the time then and there duly excepted, and says, owing to the adverse rulings of the court, as aforesaid, that he will not further prosecute his suit in this behalf, but with leave to move to set the same aside, will take. a nonsuit. Wherefore it is ordered and adjudged,” etc.

The court declined, however, to order the bill of exceptions amended mmc pro tunc, and entered an order overruling plaintiff’s motion. Plaintiff thereupon brought the matter here for review, and his said appeal has been here docketed and heard together with that of defendants in the case proper.

Defendants (respondents here, in this proceeding) insist that there was nothing upon which to base a nunc pro tumc entry amending or correcting the bill of exceptions; that neither the memorandum of counsel nor the clerk’s entries furnished a basis therefor.

It is said that the memorandum was not a paper in the case, or at least not one required by law to be filed, and was not evidence upon which a nunc pro tunc order could be made. And in support of this defendants call particular attention to the following cases: M., K. & E. Ry. Co. v. Holschlag, 144 Mo. 253, 45 S. W. 1101; Callier v. Railroad, 158 Mo. App. 249, 138 S. W. 660; Becher v. Deuser, 169 Mo. 159, 69 S. W. 363. Plaintiff, on the other hand, contends that the memorandum was sufficient for the purposes aforesaid, particularly in view' of a certain rule of the circuit court, in force at the time, providing for the filing of a memorandum with the clerk when “an order is granted by the court upon an oral motion.” We find it unnecessary, however, to pass upon this phase of the .matter, and will hence not discuss it.

We think that it cannot be doubted that the recital in the record entry of the judgment itself, to the effect that plaintiff duly and timely excepted to the action of the court. compelling the nonsuit, afforded sufficient evidence, and evidence of the requisite high character, to warrant the court in ordering the nwnc pro tunc entry made in the bill of exceptions.

It is the settled law of this State that, after final judgment and at a subsequent term, entries mmc pro time can only be made where the record in some way shows, either from the judge’s minutes, the clerk’s entries, or some paper in the case, the facts authorizing such an entry. Such entries cannot be made from the memory, of the judge, nor on parol proof derived from other sources. [See Collier v. Lead Company, 208 Mo. l. c. 272, 273, 106 S. W. 971, and cases cited; State v. Libby, 203 Mo. 596, 102 S. W. 641; Coy v. Landers, 146 Mo. App. l. c. 420, 125 S. W. 789; Lindsey v. Nagel, 157 Mo. App. 128, 137 S. W. 912; Callier v. Railroad, supra; Shepard v. Grier, 160 Mo. App. 613, 140 S. W. 932.] But the settled rule, reiterated in these and other cases, recognizes that such nunc pro tunc entries may properly be made from evidence furnished by the clerk’s entries in the court’s records, made at the time in question. Here the clerk’s entry, in the record of the very judgment or order itself, recites the very fact which plaintiff seeks to have.entered in the bill of exceptions, nunc pro tunc.

It is argued by defendants’ counsel that no duty rested upon the clerk to record the saving of exceptions, and, not being an act required by law to be by him performed, it is wholly nugatory and furnishes no basis by which to make the amendment or correction in question. We are cited to no authority sustaining this proposition. It is quite true that exceptions do not belong in the record proper, and if they are so found here we cannot consider them; but this does not mean that the clerk’s entries in the record proper may not afford a basis for a nunc pro tunc entry below correcting the bill of exceptions, inserting an exception in its proper place. Nor is what is said in M., K. & E. Ry. Co. v. Halschlag and Callier v. Railroad, supra, as to what is “a paper in the case” which may afford a basis for a .nunc pro tunc entry, here applicable. There can be no doubt that the record entry here in question is an entry of record in the cause, and solemnly records the happening of the very thing which plaintiff now seeks to have the bill of exceptions show. The bill of exceptions, when duly approved, signed and filed, became a part of this same record. The fact that plaintiff duly and timely excepted to the ruling in question appeared upon this record; but it did not appear in the proper part thereof, to-wit, the bill of exceptions. It would be a strange doctrine indeed, if, with tbe record entry before it, and that too in tbe very judgment or order itself, the court was powerless to correct that part of tbe record consisting of tbe bill of exceptions by a nunc pro tunc entry, to make it conform with wbat tbe court’s own records showed to be true, and to make tbe bill of exceptions speak tbe truth.

A further argument of counsel is based upon'wbat is said in Coy v. Landers, supra, where it was held that under tbe circumstances appearing, tbe trial court could not make an order, nunc pro tunc, incorporating tbe motion for a new trial into tbe bill of exceptions, where such motion bad neither been copied therein nor called for. It was said: ‘ ‘ There is naught in tbe shape of a note or memorandum in tbe present record or files indicating tbe truth of tbe proposition that tbe motion for a new trial was ever intended to be incorporated in tbe bill or presented here f.or review, and in tbe absence of such, it may not be incorporated by a, mmc pro tuno entry based on tbe mere showing that it was filed, considered, overruled and an exception saved to such ruling.” But tbe question here is not whether there was an intention to incorporate tbe contents of some paper into tbe bill of exceptions — if such question of intention would be here pertinent, as this is defendants’ bill of exceptions and not plaintiff’s. Tbe amendment here sought is for tbe sole purpose of having tbe bill of exceptions show that plaintiff duljr excepted to a certain ruling; which in truth and fact be did, as tbe court’s records attest.

We do not mean to say that it is necessary for plaintiff to preserve an exception to tbe ruling in question, when tbe casé proper is here on defendants ’ appeal from an order setting aside tbe nonsuit and granting a new trial. That question we discuss in disposing of defendants’ said appeal. We bold, however, that tbe trial court, under tbe circumstances here appeariiig, should have made the entry, nunc pro tuno, at plaintiff’s instance, correcting the hill of exceptions.

The order of the lower conrt in the premises will therefore be reversed, and judgment entered here amending the bill of exceptions, nunc pro time, as prayed by plaintiff. It is so ordered.

Reynolds, P. J., and Nortoni, J., concur.  