
    Smith v. Smith. The State, ex rel. Smith, v. Hoffman, Judge.
    
      Divorce — Oral announcement of decision — Mandamus to compel entering of decree — Issues of fact to be determined, when — Right to dismiss divorce proceedings after submission.
    
    (Nos. 16882 and 16883
    Decided November 1, 1921.)
    Error to the Court of Appeals of Hamilton county.
    Marguerite E. W. Smith brought suit for divorce against George Vivian Smith in the court of common pleas of Hamilton county. Smith was duly served with summons, but filed no pleading in the case and did not appear at the trial of it in person or by counsel. On March 19, 1920, the cause came on regularly for hearing before Judge Charles W. Hoffman. Oral evidence was offered by the plaintiff at the hearing and no defense or evidence was offered by the defendant; and “at the conclusion of the hearing of the evidence in said case, Judge Charles W. Hoffmann, as Judge of the Court of Common Pleas, Hamilton County, Ohio, announced and rendered his decision, granting a decree of divorce to the plaintiff, Marguerite E. W. Smith, on the said 19th day of March, 1920, from the defendant George Vivian Smith.”
    These facts are set forth in a petition for a writ of mandamus filed in the court of appeals of Hamilton county as an original suit by George Vivian Smith, the relator.
    Relator further averred in his petition in mandamus that the decree of judgment of divorce rendered by said Judge Charles W. Hoffman in said case on the 19th of March, 1920, was not spread upon the records and journals of the court of said Judge Hoffman.
    The petition then states that knowing that the decree had been granted to the plaintiff in the divorce proceeding, the relator, acting in good faith, was married on the 24th of March, 1920, at Elyria, Ohio.
    The petition further avers that on the 23d of June, 1920, the relator filed a motion to have said decree entered, and tendered a decree in writing decreeing a divorce to said Marguerite E. W. Smith, and that said motion came on for hearing on the 29th of June and was argued by counsel, whereupon the said Judge Hoffman against the protest of the relator dismissed and refused to enter said decree in said case, which was then pending in the court of common pleas; and relator alleges.that he has no other remedy in law or equity, and, therefore, prays for a writ of mandamus to compel Judge Hoffman to enter of record a decree of divorce as of the date of March 19, 1920.
    
      By his answer the defendant judge admits the filing by Marguerite E. W. Smith of the petition for divorce against the relator; that the relator was personally served and was in default for demurrer or answer to said petition. He further admits that on or about the 19th of March, 1920, the case came on for hearing before the defendant, as judge of said court; that oral evidence was offered by the plaintiff, and that the defendant made no defense and offered no evidence. The answer contains this further allegation:
    “Further answering this defendant denies that he announced or rendered a decision in said case No. 173511 granting a decree of divorce to the plaintiff Marguerite E. W. Smith from4said George Vivian Smith on the 19th day of March, 1920.
    “This defendant admits that on the 23d day of June, 1920, said George Vivian Smith filed a motion in said Court of Common Pleas, Division of Domestic Relations, asking that a divorce be,entered in favor of Marguerite E. W. Smith against the said George Vivian Smith; that said motion was held by the Court to be not well taken and was overruled.
    “Defendant for further answer says that on the 18th day of June, 1920, Marguerite E. W. Smith in open Court made an oral application to withdraw said cause No. 173511 from further consideration by the Court and for leave to dismiss her action at her costs; that said motion so made came on for hearing and arguments by counsel, and the Court being fully advised in the premises found the same to be well taken arid granted same and that on the 29th day of June, 1920, the Court ordered, adjudged and decreed that said cause No. 173511 in which the* said Marguerite E. W. Smith was plaintiff and George Vivian Smith was defendant be, and the same was dismissed.”
    The answer further alleges that the relator excepted to the judgment of the court dismissing the cause, and denies that relator has no further remedy at law.
    On the hearing of the mandamus proceeding in the court of appeals the defendant judge of the court of common pleas moved for a judgment on the pleadings. This motion was sustained by the court of appeals, and this proceeding is brought to reverse that judgment.
    Cause No. 16883» is an error proceeding in the original divorce case and seeks to reverse the judgment of the court dismissing the cause, which judgment was affirmed by the court of appeals.
    
      Mr. David Davis, for plaintiff in error.
    
      Mr. H. E. Engelhardt, for defendant in error.
    
   By the Court.

The court of appeals found that the defendant in the mandamus proceeding was entitled to a judgment upon the statements in the pleadings, and entered its judgment accordingly. In this posture of the case this court in the consideration of the petition in error must accept the allegations of. the petition as true. In that pleading it is alleged that the divorce proceeding in the common pleas court came on regularly for hearing and that a.t the conclusion of the hearing on the evidence the judge “announced and rendered his decision granting a decree of divorce to the plaintiff on said 19th of March, 1920.”

It is contended by plaintiff in error that the oral announcement of the decree by the judge on the 19th of March, 1920, was a judgment in the case, and some decisions by inferior courts of this state and in other jurisdictions are cited in support of that proposition.

This question has; been recently before this court in Industrial Commission of Ohio v. Musselli, 102 Ohio St., 10. In that case it was held that the court speaks through its journal and a judgment is not rendered until it is reduced to a journal entry. Slight reflection will show the necessity of this rule. Otherwise doubt and controversy would constantly arise as to what the judgment or order of the court and its date were. But in furtherance of justice an order nunc pro tunc may always be entered. Charles v. Fawley, 71 Ohio St., 50, and Industrial Commission of Ohio v. Musselli, supra.

It is averred in the petition that the decree thus rendered by the court was not entered on the records and journal, that on June 23d the relator filed his motion to have it so entered, and that he tendered such a decree in writing to the court.

It is true that the answer contains a denial that the court announced or rendered a decision granting a decree of divorce on the 19th of March. But that presents a question of fact. If the allegations of the relator are true then it was the duty of the court to cause an entry of the decree to be made on its journal.

Section 11604, General Code, provides 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. All parties to the proceeding are entitled to invoke the benefit and protection of that provision. In State, ex rel. Voight, Jr., v. Lueders, Probate Judge, 101 Ohio St., 256, there was an application filed in the probate court to set aside a writ of execution issued on an alleged judgment in that court, and this court said: “Since' the application * * * was properly presented to the probate court it Was incumbent upon that court to act upon that application and enter its determination on the journal. The court speaks through its journal. A peremptory writ will therefore be awarded to the relator commanding the respondent to enter upon his journal his decision upon the application of the relator to set aside the writ of execution.”

In divorce cases the.procedure is prescribed by the Code.

Section 11986, General Code, provides: “If the defendant fails to appear, or, having appeared, admits or denies in his answer the allegations in the petition, the court shall hear and determine the cause. On the hearing, if any of the causes for divorce charged in the petition be proved to the satisfaction of the court, it may pronounce the marriage contract dissolved and both of the parties released from its obligations.”

No default or consent decree can be made in a divorce case, and if a decree is made after a hearing and entered of record, both parties are released from the marriage contract. There is an affirmative release for each. Of course if new evidenece were presented, or the court should on reconsideration arrive at a different conclusion, the decree would be made accordingly. But if the allegations of this petition are true both parties to the proceeding were entitled to have an entry of the decree made on the journal. ,

This issue of fact made by the pleadings should have been tried and determined by the court of appeals.

It is contended by defendant in error that plaintiff had an adequate remedy at law by proceeding in error. The purpose of the mandamus proceeding was to compel the court to complete its record. The proceeding does not relate to an error apparent on the record. So far as the proceeding in error in the original case, No. 16883, filed here by the defendant, is concerned, the record of the trial court shows that the cause was dismissed on application of the plaintiff.

It was held in Turner v. Pope Motor Car Co., 79 Ohio St., 153, in the syllabus, that: “Under favor of subdivision one (1) of Section 5314, Revised Statutes [now Section 11586, General Code], the plaintiff cannot as a matter of right dismiss his action after the final submission of the case to the court.”

The defendant George Vivian Smith had objected to the dismissal, and had filed his motion, supported by affidavit, to the effect that the case had already been tried and determined by the court of common pleas.

We think the question of fact thus presented and .supported by the motion of defendant should have been heard and determined by the trial court and that the court erred in dismissing the cause in that state of the record.

The judgment of the court will be. reversed.

Judgment reversed.

Johnson, Hough, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  