Académique Documents
Professionnel Documents
Culture Documents
2008)
No. SC89016.
Supreme Court of Missouri
IN RE SHAW
256 S.W.3d 72 (Mo. 2008)
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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)
both entered on January 25, 2007. They also aver that Bennett files affidavit of publication, petition
the court erred because there is clear and convincing for approval of final settlement, and order of
evidence that they are heirs at law of the decedent, distribution I.
While not persuaded by these arguments, this Court Bennett's attorney sends letter to the clerk in
agrees that it is necessary to determine when there the probate division advising her to cancel the
was a final, appealable judgment in the case and scheduled hearing on the objections because he
would be withdrawing distribution order I and
whether a timely appeal was filed. Committee for Ed-
related documents.
ucational Equality v. State, 878 S.W.2d 446, 450 (Mo.
banc 1994) (the Court, sua sponte, must determine its July 6, 2006
own jurisdiction of an appeal). Based on the proce-
dural history of this case, the inquiry should include Bennett files petition for approval of
consideration of whether distribution order II consti- distribution order II and affidavit of
tutes the final judgment governing the parties' rights, publication.
triggering the time for appeal. In considering which
of the court's orders constitutes the final, appealable July 27, 2006
December 5, 2006
Application for letters of administration and
appointment of personal representative
Court overrules objections and enters
Stephen Earl Bennett.
judgment affirming "original" distribution
order "tendered for filing on or about the 6th
March 13, 2006
day of July, 2006." Court directs Bennett's
attorney to file, within 15 days, a revised final
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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)
settlement and distribution order "to reflect entered in the case record. Another
changes, if any, to the property of the Estate handwritten notation was made on the face
since the initial proposed Final Settlement was of the December 5, 2006 judgment. On that
filed." judgment, the date "July 6th" is crossed out
and a handwritten notation "March 13th/
January 19, 2007
WKC" is written in. Although the
handwritten notation was not dated, the
Bennett files proposed distribution order III.
modification is consistent with the January
25, 2007 docket entry, stating that a nunc
January 25, 2007
pro tunc order was entered to correct the
December 5, 2006 judgment.
Docket entry: "December 5, 2006 Judgment
corrected nunc pro tunc to reflect the correct
2. Because, under section 473.590, the filing of
date of the original final settlement approval,
objections precluded approval of distribution or-
finding and decree of heirship, succession and
der I, it is not necessary to address the court's fail-
distribution, filed on March 13, 2005. . . . Order
ure to date distribution order I or the fact that
Approving Final Settlement." [(distribution
there was no docket entry reflecting the filing of
order III)]
the order.
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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)
Here, the court did not purport to overrule the ob- rather than a judicial error that is not subject to
jections until December 5, 2006, well after the 90-day correction by a nunc pro tunc order. Id.
period had expired on November 6, 2006. The court
Once the July 27, 2006 judgment became final, the
had no authority to extend the 90-day limit for ruling. 4
court was not permitted to alter it. Crockett Oil Co. v.
Heinen v. Healthline Management, Inc., 982 S.W.2d 244,
Effie, 374 S.W.2d 154 (Mo.App. 1964). It is the order
246 (Mo. banc 1998). Appellants had ten days from
that governs the rights of the parties, and any later or-
November 6, 2006, to file a notice of appeal. Rule
ders are a nullity. To the extent that appellants raise
81.04. They did not do so.
issues relating to orders entered after the July 27, 2006
While, at some point, the judge crossed out his signa- order, *77 therefore, those orders are invalid and of no
ture on the copy of the July 27, 2006 distribution or- effect.
der II in the court record, that action was not effec-
4. Although the court would have retained juris-
tive to vacate this final judgment. A judge is permit-
diction to enter a valid nunc pro tunc order, the
ted to accept papers to be filed, but the filing date is
nunc pro tunc order it attempted to enter on Jan-
to be noted thereon. Rule 43.02(b). Here, that was not uary 25, 2007, was a correction of the December
done. While the legal file contains both a copy of the 5, 2006 judgment, which was entered after it lost
original judgment filed on July 26, 2006, and the mod- jurisdiction. If the court did not have jurisdiction
ified judgment that is identical in every respect except to enter the judgment it was attempting to cor-
for the striking out of the signature and the handwrit- rect, it did not have jurisdiction to enter the nunc
ten notation, the modified judgment does not have a pro tunc order.
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IN RE SHAW, 256 S.W.3d 72 (Mo. 2008)
Conclusion
All concur.
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