Opinion
No. 18020
Decided January 29, 1924.
Error proceedings — Seventy-day limitation runs, when — Section 12270, General Code — "Entry of judgment" construed — Date of filing governs.
Where the decision of a court has been reduced to a journal entry, approved by the judge and counsel for the interested litigants, and the same has been filed for record with the clerk, such filing becomes an "entry of the judgment" within the meaning of Section 12270, General Code, and proceedings in error must be commenced within 70 days after the date of such filing.
ERROR to the Court of Appeals of Summit county.
This is an action for money judgment by the realty company, which secured a verdict on April 17, 1922. On the following day the rubber company, the defendant below, filed its motion for a new trial. The docket entry discloses that on May 20, 1922, the motion for a new trial was overruled, to which defendant excepted. On May 23, 1922, a journal entry was filed with the clerk of the court of common pleas, specifically overruling the motion for a new trial and rendering judgment in favor of the realty company for the amount of the verdict and for costs. On the back of that entry were the following indorsements:
"O K Musser, Kimber Huffman for Pltff," and "O K Bacon, Burch, Bacon Denlinger, Attorneys for Dft."
It also contained the indorsement of "S.D. Kenfield, Judge."
On August 7, 1922, being more than 70 days from the filing of the judgment entry, the rubber company filed its petition in error in the Court of Appeals, seeking to reverse the judgment. In that court the realty company moved to dismiss the petition in error because it appeared to be filed more than 70 days after the date of judgment; whereupon, on the application of the rubber company, suggesting an imperfect record, the Court of Appeals ordered that a certified and complete record be transmitted to it from the trial court. In the trial court the rubber company therefore moved for an order correcting the record so as to make it appear that the judgment was entered on June 2, 1922, instead of May 23 of that year.
This proceeding in error is based on the supplemental proceedings occurring in the trial court on the hearing to correct the record in that respect. Upon that issue the trial court, stating separately its findings of fact and its conclusion of law, found that "the entry of the judgment rendered by Judge Kenfield on May 23, 1922, in this case was on June 6, 1922," and ordered its clerk to change the record so that it should appear that the entry of judgment was June 6, 1922, instead of May 23 of that year. From this order error was prosecuted to the Court of Appeals, which reversed the judgment or order of the trial court, and, proceeding to render the judgment which that court should have rendered ordered the clerk of the court of common pleas to restore the date of May 23, 1922, on its journal, as the date when judgment was rendered. Error is now prosecuted to this court seeking a reversal of the judgment of the Court of Appeals.
Messrs. Burch, Bacon Denlinger, for plaintiff in error.
Messrs. Musser, Kimber Huffman, for defendant in error.
The facts found by the trial court relating to the entry of May 23, 1922, are substantially undisputed. The action was for a money judgment. A verdict was rendered on April 17, 1922, and on May 20, 1922, a motion for a new trial was marked overruled on the docket entries of the trial court. On May 23, 1922, a journal entry was filed with the clerk, specifically overruling the motion for a new trial and rendering judgment for the amount of the verdict and the costs. This entry contained indorsements showing the approval of counsel for both plaintiff and defendant as well as approval of the trial judge. Because of the press of work, caused in a measure by the number of entries filed for record, the actual recording of entries in the journal was often necessarily delayed, and for that reason, in this particular instance, the entry of May 23 was not recorded in the journal until about June 6, following.
Section 12270, General Code, provides:
"No proceedings to reverse, vacate or modify a judgment or final order shall be commenced unless within seventy days after the entry of the judgment or final order complained of."
The petition in error from the original judgment was filed in the Court of Appeals 76 days after the filing of the approved entry on May 23. The question presented is, Was such entry an "entry of the judgment" within the purview of the Code section, and did the 70 days begin to run from that time?
A judgment is defined to be the judicial act of the court; its entry on the journal merely evidences the judgment and is wholly the ministerial act of the clerk. In Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32, this court held that a judgment was not rendered until it was reduced to a journal entry. Section 11604, General Code, provides that all judgments must be entered on the journal of the court and specify clearly the relief granted or order made. Section 11599, General Code, requires the judgment to be immediately entered by the clerk upon the overruling of a motion for a new trial. So that within the contemplation of these statutes the judgment should be immediately entered when the motion for a new trial is overruled by the court. When a judgment is pronounced, reduced to an entry, and approved by the trial judge, it at once becomes effective between the parties whose rights have been finally concluded thereby. However, a stranger to the record, such as a bona fide purchaser without notice, is not bound by an approved and filed entry until the same is actually spread upon the journal. Coe v. Erb, 59 Ohio St. 259, 52 N.E. 640, 69 Am. St. Rep., 764.
Originally section 6723, Revised Statutes, provided that the limitation for error proceedings should run "after the rendition of the judgment." This was later changed by codification to read as it now does, that proceedings in error must be commenced within 70 days "after the entry of the judgment" complained of. It is extremely doubtful whether the Legislature intended to change the period of limitation within which error proceedings should be instituted. The present statute does not say, in express terms, that the proceedings in error shall be commenced after the entry of the judgment has been spread upon the journal. In view of the ambiguity employed it might well be construed to mean, as we hold it to mean, that such proceedings should be commenced after the date of filing the entry of judgment. It is within the common knowledge of the legal profession that there are many occasions when it is impossible for the clerk to perform the ministerial duty of spreading upon the journal all the entries that may be filed with him on the same day, yet, within the contemplation of law, in so far as the parties thereto are affected, they are deemed to be entered on the journal at the time of filing. Were we to hold otherwise we would place it in the power of the clerk to fix the time when a judgment entry would become operative, and permit his neglect or delay to toll the statute of limitations for an indefinite time.
We therefore hold that, when the parties to the judgment, or their counsel, approve a written journal entry, and the same has been signed and approved by the trial judge, the date of filing the entry with the clerk of court is an "entry of the judgment" within the purview of Section 12270, General Code, and proceedings in error must be commenced within 70 days after that time. If occasion should arise where one of the litigants would suffer unjustly from an approved journal entry, the court has full power over its journals during the term, whereby relief may be granted; or, it may vacate or modify its judgment after the term for the causes enumerated in Section 11631, General Code. The general rule seems to be that, as between the litigants, their rights become established as soon as a judgment is rendered, and that in such case it is not necessary, as between them, that the judgment should be entered or recorded.
"As between the parties the validity of a judgment properly rendered is not affected by the delay of the clerk in entering it in the court records, nor by his omission altogether to record it in pursuance of statutory provisions making it the duty of the clerk to enter all judgments of record." 15 Ruling Case Law, 581, and Quareles v. Seattle, 26 Wn. 226, 66 P. 389.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
MARSHALL, C.J., WANAMAKER, ROBINSON, DAY and ALLEN, JJ., concur.
MATTHIAS, J., concurs in the judgment.