"Where the facts are undisputed, it is for the court to determine as a question of law whether such facts show such an actual and continued change of possession as will render a transfer of personal property valid as against creditors of the seller."

has changed hands and the title has passed, been submitted to the jury at the second trial from the vendor to the vendee. See Sankey was the issue as to the time of the delivery v. Suggs, 111 Okl. 293, 239 P. 149; Ellet-Ken- of the cotton. We do not so construe the dall Shoe Co. v. Ross, 28 Okl. 697, 115 P. 892; | language of the former opinion. On the conCochran Grocery Co. v. Harris, 28 Okl. 715, trary, it occurs to us that the issue to be de116 P. 185; Swartzburg v. Dickerson, 12 Okl. termined in the trial court under the direc566, 73 P. 282; also Israel v. Day, 41 Colo. tions of this court on the former appeal was 52, 92 P. 698. In the case of Sankey v. Suggs, whether the cotton had been delivered to supra, it is said: Smith before the filing of appellant's mortThis necessarily involved a mixed gages. question of law and fact to be determined under the Oklahoma law, to which our attention was not directed on the former appeal. But, even if this court had decided on the former appeal that the cotton had been delivered by Bromley to Smith, and had left open for decision only the question of the date when such delivery took place, nevertheless such would not be the law of the case on this appeal, because on the last trial the facts were different on the issue of whether or not there had been a delivery of the cotton from the facts de veloped on the first trial. Hence the rule of "law of the case" cannot avail the appellees. Hartford Fire Ins. Co. v. Enoch, 79 Ark. 475– 479, 96 S. W. 393.

[2] Under the above statute of Oklahoma we are convinced that the undisputed testimony in this record shows that there had been no delivery of the cotton to Smith before the appellant, Nelson, filed his mortgage covering the cotton in controversy. Indeed, there had been no delivery of the cotton in controversy such as is contemplated by the Oklahoma law until the cotton was hauled from Bromley's barn to Hackett, Ark., and sold to Forbes in 1922. The undisputed testimony shows that Bromley's mortgages to Nelson covering this cotton were duly filed long before that, to wit, during the years 1920 and 1921. The court, therefore, under the undisputed evidence, should have given appellant's prayer for an instructed verdict in his favor.

3. The undisputed testimony shows that the value of the cotton in controversy was $1,000. For the error of the court in refusing to grant appellant's prayer for a directed verdict in his favor, the judgment is reversed. Inasmuch as the cause seems to have been fully developed, judgment will be entered here for [3] 2. Learned counsel for the appellee con- appellant against appellees in the sum of tend that the only question that could have] $1,000.

(289 S.W.)

(St. Louis Court of Appeals. Missouri. Nov. defendant himself admitted that he was in

ute. The testimony adduced on behalf of the state is sufficient to make out a prima facie George F. Osiek and H. W. Femmer, both The state adduced as a witness a po- of St. Louis (George O. Durham, of St. Louis, lice officer, who testified that he apprehended of counsel), for appellant.

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

William Waye, Jr., of St. Charles, for re-only by the defendant H. W. Femmer, and spondent.

not by the defendant Fred Femmer. As to the answers filed, it is sufficient for this BENNICK, C. This is an appeal from the appeal to state that the answer of the defendaction of the trial court in overruling motions ant Fred Femmer was in effect a general to correct and amend a judgment nunc prodenial. On the issues joined said cause was tunc and to quash an execution issued on such judgment; the judgment in question having been rendered by the circuit court of St. Charles county, Mo., in a case wherein J. H. Cordes was plaintiff and H. W. Femmer and Fred Femmer were defendants.

The petition alleges that plaintiff leased to the defendant H. W. Femmer, for a term of five years, 263 acres of land situated in St. Charles county, and that in and by said lease said defendant H. W. Femmer agreed to pay plaintiff as rent for said premises the sum of $600 on the 31st day of July, 1922, and the sum of $400 on December 1, 1922, and like sums on like dates each year thereafter during the life of the lease. The petition then further alleges that—

"Under and by the terms of said lease there was due from defendants as rental for said

premises the sum of $600 on the 31st day of Julv.

1922, and that again there was.due to plaintiff
as rent for said premises the additional sum of
$400 on the 1st day of December, 1922, but that
neither of said amounts have been paid by de-
fendant H. W. Femmer or anyone else to plain-
tiff, and that said sums are still due plaintiff.
"Plaintiff further says that on the 10th day of
October, 1921, plaintiff granted to said lessee,
defendant H. W. Femmer, permission to sublet
the premises hereinabove described or any part
thereof, but that under such grant, as provided
for in said permission to sublet, said lessee still
remained responsible to plaintiff for the faithful
performance and fulfillment of all the covenants
and agreements in said lease agreed to by said
lessee, and plaintiff says that, even though he
granted to said lessee, H. W. Femmer, the per-
mission to sublet said premises, such permission
did not and does not relieve said defendant H.
W. Femmer from the payment of the rental pro-
vided for in said lease and hereinabove men-
tioned and referred to.

tried before the court without a jury, and on June 21, 1923, the trial judge wrote the following entry in his trial docket:

evidence. Judgment for plaintiff for $1,000 rent "Cause is submitted on the pleadings and the money as prayed in petition. Judgment for defendant H. W. Femmer on his counterclaim for $83.33 for his attorney fee. Court finds that defendant Fred Femmer is in possession as sublessee of about 100 acres of the lands described in the lease, on the south side of farm; that all crops raised or produced on the leased premisheld liable for the payment of rent as provided es, whether by original lessee or subtenants, are in said lease. Judgment is rendered accordingly."

The record further discloses that thereafter, in March or April, 1925, no formal judgment up to that time having been entered upon the clerk's record, the clerk of the court entered formal judgment in the cause upon his record in form submitted to him by counsel for plaintiff, whereby judgment was given plaintiff for $1,000 rent money as against both of the defendants, and judgment for the defendant H. W. Femmer on his counterclaim for. $83.33, "and that plaintiff should have judgment against said defendants H. W. Femmer and Fred Femmer for the sum of $917 and for his costs herein." Thereupon plaintiff had execution issued on said judgment, under which the sheriff levied upon and sold a carload of wheat the property of the defendant Fred Femmer; the proceeds of such sale amounting approximately to $1,300.

mer, on July 22, 1925, filed his motion to In this situation the defendant Fred Femcorrect and amend the aforesaid judgment by an entry nunc pro tunc to conform said "Plaintiff further says that, pursuant to said judgment to the facts as they appear of recpermission granted to said H. W. Femmer, thord, so that the judgment entered be against lessee named in said lease, said lessee sublet the premises herein above described to defendant Fred Femmer, and that said Fred Femmer occupied and farmed said land and is now in the occupancy and possession thereof.

"Plaintiff further says that he made written demand on defendants H. W. Femmer and Fred Femmer for the payment of the rent provided for in said written lease, but that said defendants and both of them failed and refused to pay to plaintiff said rental after such demand, and that such rental and the full amount thereof remains unpaid and is still due plaintiff from said defendants.

"Wherefore plaintiff prays judgment against defendants for the sum of $1,000 and for his costs herein expended."

Plaintiff attached to his petition a duly verified copy of the lease mentioned in the

the defendant H. W. Femmer alone for $1,000 less $83.33 on his counterclaim, and plaintiff be given a lien on all crops raised on all of the land included in the original lease. Defendant Fred Femmer thereafter, on Oc

tober 2, 1925, also filed a motion to quash the judgment and to stay and recall execution issued thereon. Defendant's said motions were heard on December 10, 1925, and each was overruled by the court. In due course an appeal was taken from the action of the court in overruling each of said motions.

tion and fail to find therein any allegation We have carefully analyzed plaintiff's petiof facts which would warrant the trial court in finding a general judgment for the rents alleged therein to be due as against the sub

(289 S.W.)

the well-pleaded facts in the petition could, raised thereon by defendant H. W. Femmer the inference be drawn that said sublessee, or by the appellant here, Fred Femmer, and defendant Fred Femmer, was chargeable a judgment in favor of the defendant H. W. with the payment of the rents reserved in the Femmer for $83.33 on his counterclaim. lease between plaintiff and the defendant Therefore the formal judgment spread of H. W. Femmer. In fact, taking the petition record by the clerk was not the judgment as a whole, it clearly appears that plaintiff, rendered by the court, in that in said formal under the facts therein pleaded, could, upon judgment as entered by the clerk a general proof adduced sustaining same, be entitled judgment is entered not alone against the to a general judgment only against the de- defendant H. W. Femmer, but also against fendant H. W. Femmer and to a lien upon the defendant Fred Femmer. crops grown upon the land under lease in- Our Supreme Court in an opinion by Shercluding the crops grown by the defendant wood, Jr., in Burnside v. Wand, 170 Mo. 531, Fred Femmer upon that portion he occupied | 71 S. W. 337, 62 L. R. A. 427, ruled that— as sublessee.

"A nunc pro tune judgment, at a subsequent term, can only be made upon evidence furnished by the papers and files in the cause, or something of record, or in the clerk's minute book, or on the judge's docket; in other words, a nunc pro tunc entry can only be employed to correct a clerical mistake or misprision of the clerk. It can never correct a mistake or over

sight of the judge, nor be used to correct judicial errors, nor to render a judgment different from that actually rendered, even though the judgment actually rendered was not the judgment the judge intended to render."

[3] The function then of a nunc pro tunc judgment is to enter that judgment which the court in effect rendered there. However, if the judgment entered is the judgment ren

Davison v.

Davison, 207 Mo. 702, 106 S. W. 1; Bohm v. Stivers, 75 Mo. App. 291; Kreisel v. Snavely, 135 Mo. App. 155, 115 S. W. 1059.

[1] We reach the above conclusion despite the fact that the plaintiff in his petition alleges, "that under and by the terms of said lease there was due from the defendants as rental for said premises" a certain sum of money. This is a mere conclusion and under the terms of the lease attached to the petition it is clear that the conclusion sought to be asserted is erroneous. The lease was entered into by plaintiff and defendant H. W. Femmer alone, and the defendant Fred Femmer is not a party thereto. Again, the petition recites that the defendant H. W. Femmer was granted permission by plaintiff to sublet a portion of the premises, but that "such permission does not and did not re-dered by the court, then the record cannot lease defendant H. W. Femmer from the payment of the rental provided for in said be corrected nunc pro tunc. lease as hereinabove mentioned and referred to," and though the petition alleges that the said defendant H. W. Femmer, lessee, did in fact sublet a portion of the premSince we rule that the judgment formally ises to the defendant Fred Femmer, and entered by the clerk upon this record is not that the said Fred Femmer occupied and the judgment rendered by the court, it folfarmed a portion of the land, and is in the lows that the court erred in refusing to sus-occupancy and possession thereof, there is tain the motions of defendant Fred Femmer no allegation therein that the said Fred to have the entry of said judgment set aside Femmer agreed to pay plaintiff any portion of and corrected, and the execution issued on the the rent reserved under the original lease. judgment as it now appears of record quashed. That the petition alleges that the amount of See Horstkotte v. Menier et al., 50 Mo. 158; the rent claimed remains unpaid and is still Mann v. Schroer, 50 Mo. 306; Raney v. Home due plaintiff “from said defendants" is again Ins. Co., 213 Mo. App. 1, 246 S. W. 57; State a mere conclusion and not warranted by the ex rel. Ozark Co. v. Tate, 109 Mo. 265, 18 S. facts set out in the petition, and that the W. 1088, 32 Am. St. Rep. 664. The result is prayer in the petition asks judgment "against that the judgment below is reversed, and the defendants" cannot be invoked to aid the cause remanded to the circuit court, with plaintiff, since the facts pleaded in the peti-directions to sustain said motions and enter tion, in our view, fail to sustain such prayer as against the defendant, sublessee, Fred Femmer.

prayed, and to quash the execution and order judgment nunc pro tunc in this cause as the proceeds of the sale of the defendant Fred Femmer's carload of wheat to be paid to him.

PER CURIAM. The foregoing opinion of BENNICK, C., is adopted as the opinion of the court.

[2] In light of plaintiff's petition as we have interpreted it above, we next look to the judge's entry upon his trial docket to determine the actual judgment of the court. Reading the judge's entire docket entry in light of the petition, we have come to the conclusion that the judgment rendered was intended as a general judgment against the defendant H. W. Femmer alone for $1,000, and a lien on the crops raised on the land DAUES, P. J., and BECKER and NIPdescribed in plaintiff's petition, whether PER, JJ., concur.

The judgment of the circuit court is accordingly reversed, and the cause remanded, with directions.

O'CONNELL v. SCHEER.

(No. 19649.)

took the view that the statement filed is based upon a direct charge against defend

(St. Louis Court of Appeals. Missouri. Dec. ant upon his own obligation to pay, and, fur

7, 1926.)

Appeal and error 554 (3)-Where no bill of exceptions is filed, and no error appears in record proper, judgment will be affirmed. Where no bill of exceptions was filed, and cause was before appellate court on record proper, question of validity of writing sued upon could not be considered, and, there appearing no error in record proper, judgment was affirmed.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action by Dr. John O'Connell against Herman H. Scheer. From a judgment for plaintiff, defendant appeals. Affirmed.

ther, of course, that the evidence sustained the cause of action.

No error appearing in the record proper, the judgment is affirmed.

1. Divorce 135-Evidence held not to show condonation by wife of husband's acts, constituting intolerable indignities, precluding divorce.

In action for divorce, evidence held not to husband, constituting intolerable indignities, show condonation on part of wife of acts of

W. W. Cohick, of St. Louis, for appellant.
H. C. Etherton, of Overland, for respond-precluding divorce.

ent.

DAUES, P. J. Action on an account for $100 for professional services brought by plaintiff, the respondent, against Herman H. Scheer, defendant appellant. Judgment for plaintiff, from which defendant appealed. There is no bill of exceptions filed, and the cause is here on the record proper.

The action was first filed before a justice of the peace, where judgment was rendered against Scheer by default. The cause was appealed to the circuit court of St. Louis county, where same was heard without a jury, again resulting in a judgment for plaintiff in the sum of $100, with $2.75 interest, making a total of $102.75.

The account filed before the justice is dated Overland, Mo., May 15, 1925, and is made out in favor of Dr. John O'Connell, and directed to Mr. H. H. Scheer, and is for "professional services May 8, 9, and 10, 1925, Mae Lussier, housekeeper for Mr. Scheer, attempted suicide case, $100."

In the circuit court, defendant filed an answer denying the indebtedness, and denying further that defendant was properly served with summons before the justice, and alleging that he had not waived service. Judgment was rendered against both the defendant Scheer and his surety on the appeal bond to the circuit court. The appeal to this court, however, is taken on behalf of Scheer only.

2. Divorce109-Presumption that occupancy of bed and room by husband and wife shows condonation is rebuttable.

Presumption that occupancy of room and bed by husband and wife shows condonation is rebuttable, and, when facts appear to contrary, presumption vanishes.

3. Divorce184(3)—In divorce case, Court of Appeals decides case anew from evidence in record.

Court of Appeals must decide case anew from evidence in record in divorce case. 4. Divorce 132-Evidence held to entitle wife to divorce on ground of intolerable indignities suffered.

In divorce action, evidence held to entitle wife to divorce on ground of intolerable indignities offered her by husband.

Appeal from Circuit Court, St. Louis County; John W. McElhinney, Judge.

"Not to be officially published." Divorce action by Mary Dennis against John Dennis. From judgment for defendant and denying alimony, plaintiff brings separate appeals. Reversed and remanded, with directions.

Marsalek & Stahlhuth, of St. Louis, for appellant.

Ralph & Baxter, of Clayton, for respondent.

In the brief and argument of appellant's DAUES, P. J. This is an action for dicounsel, which covers less than one printed vorce. The original petition was filed on page, we are cited to section 2169, Revised April 15, 1922. The amended petition upon Statutes Missouri 1919, which is a provision which the case was tried was filed January as to what agreements must be in writing, 29, 1923. In the amended petition it is aland it is insisted that the above agreement leged that plaintiff and defendant were marwas not in writing, and that same is there- ried on October 18, 1892; that on January fore void. Of course, no such question is 19, 1922, plaintiff discontinued having mar here on the record proper. It may not be ital relations with the defendant, and has amiss to say that the circuit court obviously had no marital relations with him since;