Decided April 10, 1940.
Courts — Journal controls, when — Written minute or oral pronouncement insufficient.
1. A court of record speaks through its journal. (Paragraph 1 of the syllabus in the case of Will v. McCoy, 135 Ohio St. 241, approved and followed.)
2. The requirements of this rule are not met by a mere written minute or an oral pronouncement by a court or judge without the preparation and filing of a journal entry.
The petition of the relator, the Industrial Commission of Ohio, is addressed to the original jurisdiction of this court. The relief sought is a writ of mandamus to compel the respondent, a judge of the Court of Common Pleas of Cuyahoga county, to sign a bill of exceptions in a case pending in that court under the style of McCarthy v. Industrial Commission of Ohio.
According to the allegations of the relator's petition, the case in the Court of Common Pleas was tried before the respondent judge on January 4, 1939. On the same day a decision was announced in favor of the plaintiff McCarthy. Then on the following day the defendant Industrial Commission filed a motion for new trial. Four days thereafter it was announced that this motion was overruled. However, nothing was filed or placed upon the journal of the court until March 2, 1939, when the following entry was made:
"This cause came on to be heard before the Honorable Judge Frank S. Day, jury having been duly waived and the case was submitted to the court on the record and proofs of counsel. After due deliberation the court found in favor of the plaintiff, and that he is entitled to participate in the State Insurance Fund.
"Thereafter the cause came on for hearing on the motion of the defendant for a new trial herein. Whereupon the court on the 10th day of January, 1939, after due consideration overruled the same and entered judgment for the plaintiff to all of which the defendant excepted.
"The court thereupon certifies to the Industrial Commission of Ohio that the verdict of the jury in the above-entitled action was in favor of the plaintiff's right to participate in the State Insurance Fund under the provisions of the Workmen's Compensation Law of Ohio, to which certification defendant excepts.
"It is further ordered by the court that the cost of these proceedings include an attorney fee to David Perris and Eugene G. Golton, counsel for the plaintiff, in the amount equal to 20% of the first $500 of an award made to the plaintiff by the Industrial Commission of Ohio, and 10% of any over and above $500 made to the plaintiff, the total attorney fee in no event to exceed $500 to be taxed against this defendant and paid by it, to which order of the court the defendant excepts.
"The clerk of this court is hereby ordered to certify a copy of this judgment to the Industrial Commission of Ohio."
Two days later on March 4, 1939, the Industrial Commission filed a notice of appeal. Then on March 28, 1939, the Industrial Commission filed a bill of exceptions with the clerk of the Court of Common Pleas, and this was transmitted to the respondent judge April 10, 1939. More than two months later on June 19, 1939, the judge returned the bill of exceptions to the clerk with the following notation:
"This bill of exceptions is returned to the clerk's office unsigned for the reason that the same was filed in the clerk's office more than forty days after the overruling of the motion for a new trial."
To this petition of the relator the respondent filed a demurrer on the grounds that the action was not brought within the time limited for the commencement of such action and that the petition does not state facts which show a cause of action. This court overruled the demurrer.
The respondent then filed an answer to the relator's petition. To this answer the relator has filed a demurrer on the ground that the facts therein stated are insufficient to constitute a defense.
Mr. Thomas J. Herbert, attorney general, and Mr. E.P. Felker, for relator.
Mr. Eugene G. Golton and Mr. David Perris, for respondent.
The present posture of this case is such that the court is now asked to reconsider and redecide the decisive question presented on the first demurrer.
The entire difficulty here encountered is due to failure to remember and observe one of the most important fundamentals of the law, namely, that a court of record speaks through its journal. This principle has been repeatedly and consistently followed by this court. Will v. McCoy, 135 Ohio St. 241, 20 N.E.2d 371; Industrial Commission v. Musselli, 102 Ohio St. 10, 130 N.E. 32; State, ex rel. Voight, v. Lueders, Judge, 101 Ohio St. 256, 128 N.E. 72; 35 Ohio Jurisprudence, 8, Section 4. Then, too, Section 11604, General Code, provides in unmistakable, mandatory language that "all judgments and orders must be entered on the journal of the court, and specify clearly the relief granted or order made in the action." In his opinion in the case of Industrial Commission v. Musselli, supra, Judge Jones pertinently observes:
"Construing Section 11604, General Code, which requires all judgments to be entered on the journals of the court, in Coe v. Erb et al., 59 Ohio St. 259, Spear, C.J., again said, at page 263: 'Why this requirement if the judgment is to be regarded as in full force and effect for all purposes by the mere announcement of it from the bench?'
"It is a familiar rule that the court speaks only through its journals. Were the rule otherwise it would provide a wide field for controversy as to what the court actually decided. Not only would the features of the decision be left in doubt as between the parties to the suit, but as a lis pendens it might seriously affect the rights of others who had not been made parties thereto."
The instant case is illustrative of the unquestionable necessity for the rule and also of the confusion to be avoided by its observance. On January 4, 1939, the respondent judge announced a finding in favor of the plaintiff McCarthy, and on January 9, 1939, it was similarly indicated that the motion of the Industrial Commission for a new trial was overruled. Yet nothing with reference thereto was placed upon the journal of that court until nearly two months later. This was a deficiency that was not cured by any oral pronouncement or written minute of the respondent judge.
The only reason given for the refusal to sign the bill of exceptions was "that the same was filed in the clerk's office more than forty days after the overruling of the motion for a new trial." Inasmuch as the ruling of the court on the motion for a new trial was not journalized until March 2, 1939, the bill of exceptions was filed well within the statutory limitation on March 28, 1939, and the respondent judge was not justified in his refusal to affix his signature.
The relator's demurrer to the respondent's answer is sustained and a writ of mandamus is allowed in conformity with the prayer of the relator's petition.
ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.