Summary
noting that nunc pro tunc entries cannot be given retrospective application if doing so would deprive a party of a substantial right
Summary of this case from State v. McClanahanOpinion
No. 31341
Decided December 8, 1948.
Judgments nunc pro tunc — Power to enter available only in furtherance of justice — Retrospective operation generally given as between parties to judgment, when — Injunctive order binding from time party informed thereof — Contempt of court, although formal injunctive order not filed.
1. The power of a court to enter a judgment nunc pro tunc is available in furtherance of justice only, and such judgment is not effective as of the date to which it relates back if that would deny the right of review to any proper party. To preserve such right of review, the date upon which such judgment is actually filed will control. (Fifth paragraph of syllabus in the case of Porter, Exr., v. Lerch, 129 Ohio St. 47, approved and followed.)
2. A judgment entered nunc pro tunc may be given effect from different dates for different purposes. For some purposes, the judgment may be given effect from the actual date of its nunc pro tunc entry. Generally, however, a nunc pro tunc entry of judgment or a nunc pro tunc correction of the records of a judgment is given a retrospective operation as between the parties thereto.
3. An order of injunction is binding upon a party to the action from the time he is informed thereof. A party present in court when such order is announced, who disobeys the order may be held in contempt and punished for the violation thereof, although the formal order of injunction was filed thereafter.
APPEAL from the Court of Appeals for Summit county.
On September 11, 1946, the Akron Bar Association Committee on the Unauthorized and Unethical Practice of Law filed in the Court of Common Pleas of Summit county a motion wherein it advised the court that according to complaints and information received by the committee Clyde A. Stott of Akron, Ohio, a notary public in and for that county, had engaged in practices which may be considered as practicing law, he not being licensed to do so, and requested the court to hear such complaint and make such finding and determination in the premises as is proper.
Thereupon, one of the judges of the Court of Common Pleas of Summit county issued an order directing that the complaint be heard on September 27, 1946, and that Stott appear at such time for examination.
The record discloses that a journal entry, filed October 1, 1946, but by direction therein contained entered as of September 27, 1946, recited that on the latter date Stott appeared in court in person and by counsel; that upon the consideration of evidence offered by the committee the court found that Stott had not been licensed to practice law in the state of Ohio or any other state; that in open court he admitted he had engaged in the practice of law; and that he consented to be enjoined and restrained from the practice of law.
The further essential parts of the entry are as follows:
"It is, therefore, the order and judgment of this court that Clyde A. Stott be and he hereby is perpetually enjoined, in the conduct of his business, from doing any of the following acts, to wit:
"1. From advertising and holding himself forth to the public or individuals directly or indirectly that he engages in the drafting of leases, deeds, mortgages, notes, wills, affidavits, bills of sale, escrow agreements or any legal documents of any kind or character whatsoever.
"2. From drawing, drafting or preparing leases, deeds, mortgages, notes, wills, affidavits, bills of sale, escrow agreements or any other legal documents of any kind or character whatsoever either gratuitously or for a fee in all cases [in] which said Clyde A. Stott has not a direct and primary interest.
"3. From advising or rendering an opinion as to the legality of the forms of, or the legal effect of, or the legal rights or liabilities accrued, incurred or arising out of any lease, deed, mortgage, note, will, affidavit, bill of sale, escrow agreement, abstract or certificate of title, condition of title as disclosed by such abstract or certificate, or any other legal documents of any kind or character whatsoever, or as to the legal rights or liabilities accrued, incurred or arising or growing out of any of the above-mentioned instruments."
In addition to decreeing the injunction the court assessed a fine of $100 and costs incurred, but suspended the fine upon condition that Stott "not again engage in the practice of law or do any of the acts referred to herein."
On October 25, 1946, the committee filed in the Court of Common Pleas a motion for an order in contempt wherein it charged that Stott had disobeyed the order of the court made September 27, 1946, and failed and refused to comply with such order.
A hearing was had on the motion, in which it was disclosed that on September 30, 1946, Stott had filled in and completed the form of application essential for the limited administration of an estate in the Probate Court of Summit county, having procured from the widow of the decedent, through necessary questioning, the information deemed proper for the completion of the form which Stott caused to be signed by the applicant and sworn to by her and signed by him as a notary public, for which a fee of 80 cents was charged and paid and also 80 cents for an acknowledgment of some other paper not involved herein. The application referred to was subsequently duly filed in the Probate Court of Summit county in the matter of the estate of O.G. Moose, being case number 48904 in that court.
At the conclusion of the evidence of the committee, counsel for Stott tendered a motion for the dismissal of the citation of contempt, contending that the order of injunction claimed to have been violated did not become effective until October 1, 1946; and that at the time of the claimed contempt (September 30, 1946) there was no valid order of injunction prohibiting the conduct of Stott complained of and further that such action of Stott did not constitute the practice of law. Included in the hearing was also a supplemental motion based upon the publication by Stott in a newspaper as a political advertisement, and also in hand-bills, wherein he sought to organize the notaries public in support of the opponents of the judges who had issued the original injunction.
The Court of Common Pleas, upon motion, dismissed the original motion and also the supplemental motion of the committee and the citations of contempt, and discharged the respondent.
Upon appeal, the Court of Appeals affirmed the judgment of the Court of Common Pleas.
The case is in this court following the allowance of a motion to certify the record.
Mr. Scott A. Belden, for appellants.
Messrs. Davis Lipps, for appellee.
The real question of law in this case, presented by the record, is the validity of the decision of the Court of Common Pleas that the order of injunction, alleged to have been violated by Stott, did not, and could not, become operative so as to control or affect his conduct until the filing of the journal entry in the office of the clerk of courts, which was October 1, 1946; and that on September 30, 1946, the date of the alleged commission of the wrongful act charged in the original motion for an order in contempt, there existed no valid or effective order of injunction.
That view very clearly appears in the opinion of the Court of Common Pleas, a portion of which follows:
"We appreciate that superficial review of the principles stated will invite their being characterized as technical, and yet we are satisfied that upon closer study and analysis they will be found to possess absolute substance and in a proceeding, as extraordinary in character as a contempt proceeding, it being certainly quasi criminal in nature, binding in their application. By no stretch of the imagination, however, should it be assumed that the court is approving or commending the act or conduct of the respondent in performing the act which he performed on September 30, 1946, or is that act any the less grievous simply because by the application of proper principles, he escapes punishment for contempt. The proven performance of such act by respondent at any time subsequent to the time of filing of the entry on October 1, 1946, would most positively call for drastic action upon the part of the court.
"For the foregoing reasons, the motion tendered by respondent to dismiss the motion to show cause, filed in this proceeding on October 25, 1946, will be sustained."
The question of law involved may be succinctly stated as follows:
May an injunctive order of the court, orally made in the presence of a defendant and with his consent and thereafter reduced to writing and filed with the clerk of courts as a nunc pro tunc order as of the date orally made be the basis of proceeding in contempt, where the violation occurs subsequently to the time the order was actually pronounced but prior to the filing of the entry thereof in the office of the clerk of courts?
The decision of the court was based on the well established rule that the court speaks through its journal and a judgment is not rendered until it is reduced to a journal entry. Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32; Amazon Rubber Co. v. Morewood Realty Holding Co., 109 Ohio St. 291, 142 N.E. 363; State, ex rel. Curran, v. Brookes, 142 Ohio St. 107, 50 N.E.2d 995; Hower Corp. v. Vance, 144 Ohio St. 443, 59 N.E.2d 377.
The conclusion of the court was that by such rule the entry of its judgment nunc pro tunc was precluded, and that the order of the court was not effective for any purpose or against anyone prior to the date the written order was filed in the office of the clerk of courts.
"A judgment entered nunc pro tunc may be given effect from different dates for different purposes. For some purposes, the judgment may be given effect from the actual date of its nunc pro tunc entry. Generally, however, a nunc pro tunc entry of judgment, or a nunc pro tunc correction of the records of a judgment, is given a retrospective operation as between the parties thereto * * *." 30 American Jurisprudence, 886, Section 123.
However, "The right of a court to enter a judgment nunc pro tunc is available in furtherance of justice only, and it is not available where it would operate to deprive a party of a substantial right, such as the right to file a motion for a new trial, or to prosecute a proceeding on appeal, or in error." 23 Ohio Jurisprudence, 680, Section 260.
See, also, Charles v. Fawley, 71 Ohio St. 50, 72 N.E. 294; Eldridge Higgins Co. v. Barrere, 74 Ohio St. 389, 78 N.E. 516; Webb v. Western Reserve Bond Share Co., 115 Ohio St. 247, 48 A. L. R., 1176, 153 N.E. 289; and Porter, Exr., v. Lerch, 129 Ohio St. 47, 193 N.E. 766.
It is stated in the fifth paragraph of the syllabus in the Lerch case that "the right of a court to enter judgment nunc pro tunc is available in furtherance of justice only, and such judgment is not effective as of the date to which it relates back if that would deny the right of review to any proper party in a higher court. To preserve such right of review the date upon which such judgment is actually filed will control."
In the Webb case, supra, this court considered the effect of a nunc pro tunc entry on existing creditors who had knowledge of the error in the judgment and attempted to exercise their liens after the motion for a nunc pro tunc order had been filed and prior to the hearing thereon. It was there held that such preexisting creditors did not obtain priority as against the plaintiff's judgment lien and were bound to take cognizance of the original judgment. The instant case comes clearly within the rule announced in the Webb case.
Stott was actually in court and was not only apprised of the order of the court but consented thereto. It was after such order was made and with full knowledge thereof that he violated it. He cannot be brought within the class of innocent third persons absolved from the effect of such nunc pro tunc entries.
He comes within the rule, well established and of long standing, that one who has actual notice of an order of injunction and disobeys it is guilty of a contempt although the injunction has not been served upon him or issued, or the order formally drawn up. Dangel on Contempt, 121; 43 Corpus Juris Secundum, 1010, Section 261. The mandate of the court being effectual upon all parties having notice thereof from the time it was given, it is necessary to fix defendant's liability for a violation, to show only that he was actually apprised of the existence of the order at the time of committing the acts constituting the violation. High on Injunctions (4 Ed.), 1430; 12 American Jurisprudence, 405, Section 24, and cases cited.
So a party is bound to abstain from violating an injunctional order directed to himself, if he has actual knowledge thereof, although it is not served or is defectively served on him, and he will be liable for its violation. Joyce on Injunctions, 394.
The rule stated has been applied in numerous cases, among which are the following dealing with particularly pertinent situations:
In State, ex rel. Curtiss, v. Erickson, 66 Wn. 639, 120 P. 104, the following facts appear: On October 22, the court announced the granting of a restraining order. On October 28, a formal order reciting the presence of the parties and the oral announcement of the court, made on October 22, was entered. On October 26, after the oral order but before the entry thereof, the defendant violated the restraining order. The finding and judgment against the defendant was approved by the Supreme Court of Washington.
It is stated in the opinion:
"We have not overlooked the contention of appellants that an order of the court is not effective until formally entered by the clerk, citing State, ex rel. Jensen, v. Bell, 34 Wn. 185, 75 P. 641; but that, and other cases which might be cited, all go to the time when the right of appeal or other right begins or ends, or where it is contended that the court has announced one decision and the judgment as entered by the clerk recites another. The rule has never, so far as we are informed, been entertained as a defense in a contempt case where there is no conflict or question as to the order of the court. An order of injunction is binding from the time the party is informed thereof, and not, as in the case of affirmative orders, from the time of service. Rem. Bal. Code, § 729; 22 Cyc., 1013, 1014. If it were not so, it would be possible always to defeat the order of the court by performing the proscribed act while the formal order of the court was in process of preparation."
The case of State v. Dunn, 36 N.M. 258, 13 P.2d 557, also presented a situation where the parties against whom an order of injunction was granted were present personally in court at the time the oral decision was announced and order of injunction made. The violation occurred before the judgment and injunction were "actually formulated, signed, entered, and served upon them." A conviction of contempt was upheld by the Supreme Court of New Mexico.
We conclude, therefore, that the Court of Common Pleas was in error in holding that there was no valid injunction in force and effect on September 30, 1946, the date of the offense involved in the first motion for an order for contempt.
We find no prejudicial error in the finding and order of the Court of Common Pleas respecting the supplemental motion for an order of contempt, and, therefore, the judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas is in that respect affirmed.
For the reasons stated, the judgment of the Court of Appeals affirming the judgment of the Court of Common Pleas as to the original motion for an order of contempt is reversed, and the cause is remanded to the Court of Common Pleas for further proceeding in accordance with the foregoing opinion.
Judgment affirmed in part and reversed in part.
WEYGANDT, C.J., HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.
TURNER, J., not participating.