Summary
granting writ of mandamus ordering trial court to correct its journal to reflect fact that continuance was not granted at relator's request
Summary of this case from State ex rel. Martre v. ReedOpinion
No. 89-1795
Submitted December 5, 1989 —
Decided February 28, 1990.
Mandamus to compel trial court to correct its journal entry to reflect the fact that the continuance issued by the court was not granted at relator's request — Writ allowed when court enters an incorrect journal entry and subsequently refuses to correct it.
IN MANDAMUS.
ON MOTION TO DISMISS.
Relator, Stacey Worcester, is a defendant in a pending criminal prosecution in Hamilton County Municipal Court, having been charged with driving under the influence of alcohol. A jury trial was scheduled for September 6, 1989. Prior to the trial date relator submitted a proper jury demand to the trial court. On the trial date, through an oversight by the assignment commissioner, no jury was summoned. Relator refused to waive her right to a jury trial. The trial court then issued a continuance. Relator immediately told the trial court that the continuance was not at her request. The trial court nevertheless refused to acknowledge this fact and caused the journal entry to state that the continuance was entered at her request.
The relevant portion of the hearing held on September 6 is as follows:
"MR. KUNKEL: Judge, recalling Stacey Worcester at this time, it's on our traffic docket.
"THE COURT: All right. This is scheduled according to the assignment commissioner for a non-jury trial. Mr. Mullenix, you have indicated that you have filed a jury request.
"MR. MULLENIX [counsel for relator]: That's true.
"THE COURT: As you know, we just reviewed the matter, and that is so. The problem is, as you may know, there was no jury set aside because the entry placed of record by the assignment commissioner did not indicate a jury trial; therefore, we are not able to proceed today with a jury. What is your intent?
"MR. MULLENIX: I have no intention of waiving my jury trial rights.
"THE COURT: All right. We are going to continue the matter then. I will make sure there is sufficient notice, warning, and otherwise to the assignment commissioner there is going to be a jury trial.
"This matter will be continued at defendant's request.
"MR. MULLENIX: For the record, this is not being continued at my request.
"THE COURT: So noted."
On October 4, 1989, counsel for relator wrote the trial court by certified mail asking that the journal entry be corrected to show that the continuance was not at relator's request. The court never made the correction.
Relator is seeking a writ of mandamus to compel the respondent trial court to correct its journal entry of September 6, 1989. Respondent has filed a motion to dismiss.
C.D. Mullenix, for relator.
Arthur M. Ney, Jr., prosecuting attorney, Philip R. Cummings and William E. Breyer, for respondent.
"In order to grant a writ of mandamus, a court must find that the relator has a clear legal right to the relief prayed for, that the respondent is under a clear legal duty to perform the requested act, and that relator has no plain and adequate remedy at law." State, ex rel. Westchester Estates, Inc., v. Bacon (1980), 61 Ohio St.2d 42, 15 O.O. 3d 53, 399 N.E.2d 81, paragraph one of the syllabus.
In Ohio a court speaks through its journal. Accordingly, it is imperative that the court's journal reflect the truth. In Hollister v. Judges of Dist. Court (1857), 8 Ohio St. 201, 70 Am.Dec. 100, we directed the judges of the District Court of Lucas County to order the clerk of courts to correct a bill of exceptions that had been altered by the trial court outside the courtroom without consultation with the defendants or their attorneys. We stated:
"Every court of record has a supervisory and protecting charge over its records and the papers belonging to its files; and may at any time direct the correction of clerical errors, or the substitution of papers in case the originals are purloined or lost; and, in the exercise of the same authority, in the case the records or files should be fraudulently or otherwise improperly altered or defaced, may direct their corrections and restoration to their original condition." Id. at 203, 70 Am. Dec. at 101.
There is a factual distinction between a court fraudulently altering its records and ordering an incorrect journal entry. Nevertheless, we have the same result: a court record which is not accurate. This court in Hollister, supra, directed the trial court to correct the altered records so that they would reflect their original condition.
In Stugard v. Pittsburgh, C.C. St. L. Ry. Co. (1915), 92 Ohio St. 318, 110 N.E. 956, in which the plaintiff sought to have a reversal by the court of appeals set aside due to what he considered a defective journal entry, we held:
"In a proper case a party could preserve his exception to the action of the court by a bill of exceptions, duly authenticated, or could procure the statement of the facts in the entry of the court, and if the court should refuse such bill or such statement in the entry it could be compelled by mandamus to correct its record." (Emphasis added.) Id. at 322, 110 N.E. at 957.
In State, ex rel. Warner, v. Baer (1921), 103 Ohio St. 585, 134 N.E. 786, this court refused to issue a writ of mandamus because of an agreement of the parties that the journal entry would not state that the jury verdict was rendered by eleven jurors instead of by twelve. We further stated, however:
"It is of course argued that the journal imports absolute verity and that it cannot be collaterally attacked. It does not seem profitable to discuss the question whether this proceeding is a direct or collateral attack upon the record, and it would seem to be the better practice to require in all instances that the records of courts of justice speak the truth; and in those instances where it can be shown that they do not speak the truth, the courts should be quick to require their correction and that they be made to speak the truth so far as the truth can be made to appear." (Emphasis added.) Id. at 588, 134 N.E. at 787.
We went on to state that if there had been no agreement as to the journal entry and the entry was incorrect, then we would "have no hesitation in ordering the journal corrected." Id. at 589, 134 N.E. at 788.
All courts have a clear legal duty to have their journals reflect the truth. All litigants have a clear legal right to have the proceedings they are involved in correctly journalized. Although the issue of a corrected journal entry could, at some point, be a matter for appeal, it is not presently appealable since the order journalizing the circumstances of the continuance is an interlocutory order and is not a judgment or a final order that is subject to appeal. See Klein v. Bendix-Westinghouse Automotive Air Brake Co. (1968), 13 Ohio St.2d 85, 42 O.O. 2d 283, 234 N.E.2d 587. This court has for over one hundred years recognized the importance of a court's records being correct and has had no problem in issuing a writ of mandamus to correct errors. We noted in Warner, supra, that a court must be "quick" in requiring correction.
In the case sub judice, it is clear from a reading of the transcript and an examination of the exhibits that the journal entry is incorrect. We must, therefore, direct the trial court to journalize the correct circumstances of the continuance.
Respondent's argument that the journal entry is a matter of judicial discretion fails because entering an incorrect journal entry is a clear abuse of discretion.
Accordingly, the motion to dismiss this complaint is overruled. We allow a writ ordering the trial court to correct its journal to reflect the fact that the continuance was not granted at relator's request.
Writ allowed.
MOYER, C.J., HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.
SWEENEY and RESNICK, JJ., concur in judgment only.