Opinion
No. 18691
Decided May 5, 1925.
Nunc pro tunc entries — Court's power limited after term — Conclusions can not be altered, when.
1. The power of the trial court to make an entry nunc pro tunc after term does not extend beyond the power to make the journal entry speak the truth.
2. A trial court is without power to alter his conclusion by nunc pro tunc entry at a term subsequent to the term of the original entry.
ERROR to the Court of Appeals of Sandusky county.
On April 22, 1922, Joseph F. Reinbolt began an action in the court of common pleas of Sandusky county for divorce against his wife, Mary I. Reinbolt. Thereafter Mary I. Reinbolt filed a cross-petition for divorce, in which she alleged a loan by her to her husband of $3,800. Amended pleadings were filed by both parties, whereby an issue was made both as to facts alleged as grounds for divorce, and as to the loan of the money and the repayment thereof.
In the month of November, 1922, the cause was heard upon all the issues made in the pleadings. During the course of the hearing, evidence was heard pro and con as to the amount of money loaned by the wife to the husband, and as to repayment thereof by the husband. The question whether the court had jurisdiction to determine the indebtedness, if any, of the husband to the wife, growing out of the financial transactions between them, was raised by the husband's counsel, and the record discloses that the court expressed the opinion that he was without jurisdiction in a divorce proceeding to adjudicate that matter, but both parties were fully heard upon that subject.
On November 8, 1922, the court made the following entry in his trial docket: "Divorce granted on grounds of gross neglect of duty of defendant. Plaintiff to pay defendant $2,500 in lieu of all claims against plaintiff. Defendant restored to her former name of __________. Exceptions by plaintiff. Plaintiff to pay the costs. [See entry.]"
On November 9, 1922, a journal entry was drawn by counsel for Joseph F. Reinbolt, the pertinent portion of which is as follows:
"The court further find upon the evidence adduced that the defendant has been guilty of gross neglect of duty toward the plaintiff, and that by reason thereof the plaintiff is entitled to a divorce as prayed for.
"It is therefore ordered and adjudged by the court that the marriage contract heretofore existing between the said Joseph F. Reinbolt and Mary I. Reinbolt be and the same hereby is dissolved, and both parties are released from the obligations of the same.
"The court further find that the plaintiff is the owner of the following described real estate not heretofore disposed of, to wit: [Description of real estate.]
"It is further ordered and adjudged that the plaintiff pay to the defendant the sum of twenty-five hundred ($2,500) dollars in lieu of all claims against plaintiff, including reasonable alimony, both temporary and permanent, or otherwise, and defendant is also awarded all articles of wearing apparel and personal property now in the home of plaintiff, together with the right to have and remove the same; * * * to all of which plaintiff excepts."
On the same day counsel for Joseph F. Reinbolt mailed the journal entry to counsel for Mary I. Reinbolt, together with a letter, of which the following is a copy:
"November 9, 1922.
"Hon. Homer A. Ramey, 939 Spitzer Building, Toledo, Ohio — Dear Sir: In the Reinbolt Case Judge Weirman made the following entry on his trial docket: 'Nov. 8, 1922. Divorce granted on ground of gross neglect of duty of defendant. Plaintiff to pay defendant $2,500 in lieu of all claims against plaintiff. Defendant restored to her maiden name of __________. Exceptions by plaintiff. Plaintiff to pay court costs. See entry.'
"I am herewith inclosing J. E., which I trust complies with the court's order, and if you will kindly O. K. and return same to me I will have it put on the journal and will arrange to either carry up the case or close it at once. Kindly give this matter your immediate attention and return same to me at once and oblige."
On November 13, counsel for Mary I. Reinbolt approved the journal entry, returned it to counsel for Joseph F. Reinbolt, accompanied by the following letter:
"Toledo, Ohio, November 13, 1922.
"Harry E. Garn, Attorney, Fremont, Ohio — My Dear Mr. Garn: I am inclosing the journal entry, with my O. K., which I have just received. I am hoping that this case may be settled up without any unnecessary delay.
"At the time of the trial Mrs. Reinbolt offered her bank book as an exhibit in the evidence, and at this time she would like to receive said bank book in order that she might draw some money out for living expenses. I think she had something like $160 in the bank.
"I will appreciate it very much if you will send me a copy of this journal entry for my files.
"Thanking you very kindly, and hoping to have the pleasure of again associating with you in the trial of a case, I am
"Fraternally yours, Homer A. Ramey."
On the 15th day of November this entry was filed with the clerk of the court of common pleas of Sandusky county, and spread upon its journal 54, page 301, under date of November 8. On the same day, November 15, Joseph F. Reinbolt paid to counsel for Mary I. Reinbolt the sum so found to be due from him to Mary I. Reinbolt and received of her counsel the following receipts:
"$150. Fremont, Ohio, Nov. 15th, 1922.
"Received of Joseph F. Reinbolt, $150, being a part of the sum of $2,500 awarded in full of all claims and demands to date, including temporary and permanent alimony to defendant in case No. 16001, Joseph F. Reinbolt v. Mary I. Reinbolt (now Mary I. Markel), common pleas court, Sandusky county, Ohio, for services rendered as attorney for defendant in said action. Homer A. Ramey, Attorney for Defendant, Mary I. Reinbolt (now Mary I. Markel)."
"$2,500. Fremont, Ohio, Nov. 15th, 1922.
"Received of Joseph I. Reinbolt (my former husband), twenty-five hundred ($2,500) dollars in full of all claims and demands of every kind, nature, and description to date, including temporary and permanent alimony, or otherwise, and allowed to me the undersigned, in case No. 16001, common pleas court, Sandusky county, Ohio, wherein Joseph F. Reinbolt was plaintiff and Mary I. Reinbolt (now Mary I. Markel) was defendant, including also the sum of $150 directed by the court in said case to be paid Homer A. Ramey, attorney for said defendant, for services rendered, for which sum I hereby receipt for and authorize plaintiff to pay said sum of $150 to my said attorney, the said Homer A. Ramey. And I the undersigned do hereby release all of the lands of said Joseph F. Reinbolt from the lien provided in said cause of action. Mary I. Markel, by Homer A. Ramey, her Attorney."
On January 8, 1923, at a subsequent term of that court, Mary I. Reinbolt, under the name of Mary I. Markel, filed two separate actions against Joseph F. Reinbolt, in one of which she seeks to recover $3,400 and in the other $400 from him. Both are actions upon accounts for money claimed to have been loaned by her to him during their marriage, and are the identical items pleaded in her answer and cross-petition in the divorce proceedings. These two actions were on motion of the defendant consolidated by the court, and thereafter an answer was filed by the defendant in error here pleading res judicata under and by virtue of the decree evidenced by the journal entry filed November 15, 1922, under date of November 8, 1922.
On June 20, 1923, the consolidated cases came on for trial. Upon request of counsel for plaintiff in error here the cause was passed to give plaintiff in error an opportunity to have the journal entry in the divorce proceeding "corrected." On August 3, 1923, at the second term of the court after the term at which the decree in the divorce case was entered, a motion by plaintiff in error was made to "correct and amend" the journal entry in the divorce proceeding, and on August 17 a supplemental motion to amend was filed.
On August 24, 1923, these motions were heard and a nunc pro tunc entry entered in the following language:
"This day this cause came on to be heard on this November 8, 1922, upon the amended petition of plaintiff, and the answer and cross-petition of the defendant, Mary I. Reinbolt, and the evidence, and was argued by counsel. And the court being fully advised in the premises, and on consideration thereof find that the court has no jurisdiction over the issues raised by the items mentioned in the answer and cross-petition of the defendant, Mary I. Reinbolt, to wit, the item of thirty-four hundred dollars ($3,400) claimed to have been loaned by defendant to plaintiff, also the item of four hundred dollars ($400) claimed to have been loaned by defendant to plaintiff, and the answer and cross petition of the said defendant as to said items of thirty-four hundred dollars ($3,400) and four hundred dollars ($400) is dismissed, and said items are not in any way considered in the rendition of a decree and judgment in this cause."
The original journal entry was amended in accordance therewith. Motion for a new trial on the issues raised by the two motions was filed, submitted, and overruled. Error was prosecuted to the Court of Appeals, where the judgment amending the original journal entry was reversed, and final judgment entered for the defendant in error here. Error is prosecuted here.
Mr. Marion W. Bacome, Mr. Homer A. Ramey, and Mr. John E. Steele, for plaintiff in error.
Mr. David B. Love, for defendant in error.
The province of a nunc pro tunc entry is to make the record speak the truth, to prevent the record from showing that to have occurred which did not occur, and to make it show what did occur that does not appear in the record to have occurred. It is not a proceeding for the purpose of reviewing former judgments by the same court, nor for the purpose of correcting errors of judgment theretofore exercised.
An issue was made upon the filing of the motions to "correct and amend" the journal entry, and the judgment of the court was properly invoked whether the journal entry correctly recorded the judgment of the court at the time of the entry, but the application seems to have been considered as a petition in error to the same court at a subsequent term to review a decree entered at a former term. The jurisdiction of the trial court to change his conclusion does not extend beyond the term in which the judgment is entered.
This court will not in this case in this proceeding be inveigled into hearing the divorce proceeding between these parties as upon error, but will confine its consideration wholly to the question whether the decree originally entered was the decree the court made at that time, and if so will not permit the bringing here for review a decree to which no exception was taken and from which no error was prosecuted. The record discloses pages of evidence of various witnesses pro and con upon the subject of the loan of money and the repayment thereof.
The original journal entry is substantially in the words of the entry made by the court in his trial docket. The correspondence between counsel for plaintiff in error and counsel for defendant in error clearly indicates an accord as to what the decree of the court was. The payment of the money, and the receipts therefor, corroborate that understanding. The Court of Appeals upon a review of the evidence submitted upon the motions to "correct and amend" the journal entry found the facts did not sustain the judgment of the trial court, to the effect that the original journal entry did not speak the truth, and reversed it. We are in accord with the judgment of the Court of Appeals. The plaintiff in error having saved no exception, and prosecuted no error to the original decree, and having received and retained the fruits of that decree, will not now be permitted to have the decree reviewed under the guise of an application for an entry nunc pro tunc. Judgment affirmed.
JONES, MATTHIAS, DAY and ALLEN, JJ., concur. KINKADE, J., not participating.