
    William Moore, for the use of another, v. Augustus H. Brown.
    The docket of a coui’t is no part of its record.
    A notice of appeal marked by the court on its docket, but not'carried into the journals, is not a compliance with the statute requiring such notice to be entered on the record; nor can the omission be cured by a nunc pro tuno order at a subsequent term.
    This is a motion to quash an appeal from the county of Sandusky.
    At the February term of the common pleas, 1840, the plaintiff recovered a judgment against the defendant, and the presiding judge marked on his docket, “ notice of appeal by def’t.”
    This notice was not carried into the journals of the court, but the defendant, within the thirty days after the term, filed his bond for an appeal.
    At the next term the defendant obtained an order nunc pro tunc, directing the notice of appeal to be entered on the journals as of the last term.
    
      *At the July term of the Supreme Court, the plaintiff [198 moved to quash the appeal because no notice was entered on the records of the court at the term when the judgment was rendered.
    Parish & Sadler, for the motion :
    The right of appeal is a statutory right, and he who would avail himself of it, must comply "with the requisitions of the statute at his peril. Section 109 of the practice act, 29 Ohio L. 78, requires the party desirous of appealing his cause, at the term when judgment is rendered, to enter notice of his intention on the records of the court. A memorandum of such notice on the docket of the court is not a compliance with the act. The court docket is no part of the record. Harvey v. Brown, 1 Ohio, 268 ; Mygatt v. Ingham, Wright, 176 ; Bradley v. Sneath, 6 Ohio, 491; Wilson v. Holeman, 2 Ohio, 253.
    Nor can the nunc pro. tunc order avail the defendant. The law requires, not that notice of appeal shall be given, but that an entry of that notice shall be made on the record at the term when the judgment was rendered. Here, no entry was in fact made. How, then, can an order of a subsequent term do that which was really not done at the former term? In fact, the notice of appeal nowhere appeared on the record until it was put there as a part of the nunc pro tunc order. .
    It is the 'office of a nunc pro tunc order to supply record evidence of what was done at a former term, and not do at a subsequent term what ought to have been done at a former term. Tarbet v. Coffin, 6 Ohio, 34; Botkin v. Pickaway County, 1 Ohio, 375; Green v. Dodge, 3 Ohio, 486; Ludlow v. Johnson, 3 Ohio, 553; Bradford v. Watts, Wright, 496; Jackson v. Wiseburn, 5 Wend. 136.
    C. L. Boalt, contra:
    The presiding judge is the organ of the court in delivering its opinions and entering its orders on the court docket. It is the duty of the clerk truly to “ enter and record all the orders, *de[1.99 crees, judgments, and proceedings ” of the court. If these orders are not “entered” in the journal by the clerk, it is the clerk’s omission — not the party’s. The party has no control over that officer. The ease of Bradford v. Watts, Wright, 496, cited by the plaintiff’s counsel, evidently proceeds on this ground. In that case it appeared that the notice was not entered either on the docket of the court or on the journal, and the party attempted to supply the deficiency bjT satisfying the common pleas that he gave parol notice, and by entering, at a subsequent term, an order to that effect, mine pro tunc. The order having been obtained, a motion was submitted in tho Supremo Court to dismiss tho appeal. The court say, “It is competent tor courts, where things, have been done by the court, that can only be evidenced by the record, and by the omission of the clerk the entry has not been made, to supply the proof, by a nunc pro tunc entry.” Again : “The attorney of the party desirous of appealing, satisfied the court that instead of giving notice on the minutes of the court, or records, under tho law, he had given oral notice of his intention to appeal, which was omitted to be entered on the minutes.”
    The presiding judge’s entries upon the court docket are, emphatically, “the minutes of the court.” Neither of them are, strictly, records. The journal contains the orders of the court drawn out more at length ; but in doing this, the clerk acts as the amanuensis of the court, whether dictated to orally or by the court’s minutes. They are both within the statute requiring the entry of the notice on the records to be made; but the evidence of that entry must be carried upon the journals at the time; or if the clerk omit it, the party must supply the evidence, by a nunc pro tunc order. In tho case in Wright’s Reports, there was-nothing to amend by.
    The case of Bradley v. Sneath, 6 Ohio, 491, was a case of appeal to the Supreme Court, from a judgment of nonsuit, without giving the reason upon which the nonsuit was entered. , As the judgment appeared in the journal entry, it was voluntary on the part of the 200] appellant; but by the judge’s minutes *it appeared that the plaintiff’s testimony was overruled by the court, for a reason which, had it appeared in tho journal entry, would have sustained the appeal.
    One question was, whether if the court were to allow the case to' stand over, it were competent for tho court below to correct the orror. Judge Wright delivered the opinion of tho court. He says : “ We see no impropriety in the court’s correcting tho mistakes of their clerk in transcribing their minutes, correcting them by the original entries. It would be strange if the law prohibited such correction.” The journal entry in that case was subsequently corrected, and the court rendered judgment on the verdict.
    It will be observed that, in this last case cited, there was an omission of the clerk that was fatal to the right of appeal,and that the defendant in that case was as liable to bo misled by the journal entry as the plaintiff was in this. He could only have sustained the appeal by availing himself of theofficeof st nunc pro tunc order.
   Grimke, J.

Section 109 of the practice act declares, that the party desirous of appealing his cause to the Supreme Court shall, at the term of the court of common pleas in which judgment is rendered, enter on the records of the court notice of such intention.

It is evident that the docket of the court is not, in any sense of the word, a record. It is a list of the causes made out for the convenience of the judges, and in which, on the other hand, memorandums are made for the convenience of the clerk. These memorandums are abbreviated as much as possible, because they are intended as mere hints to the recollection of the clerk, so that a decree in chancery which would fill several pages may be signified by only three words. This docket is not required by law to be preserved as a record, nor is it in fact actually so preserved. It might fall into the hands of any private individual after the adjournment of the court, and entries might then be made upon it, which it might be difficult, perhaps impossible, to distinguish from such as were *made during the term. What infinite mis- [201 chief might be produced, if' a memorandum appearing upon this docket at a subsequent term should be considered as a compliance with the law. We might commit general injustice in an attempt to remedy a private inconvenience. Nothing is more common than for a party to give notice of appeal with only a faint intention to cany the same into execution, or having formed the resolution he may have abandoned it almost immediately. The fact that notice of his intention appears on the docket, and yet not on the journal, may be evidence that he has countermanded the notice if he ever gave one; for it will bo observed, that the journals of the court are read every morning, for the very purpose of correctingall mistakes and supplying all omissions which may have been made. If not then done; the presumption is that the party interested did not intend that it should bed'me.

A party who has recovered a judgment may listen every morning to the reading of the journal, or he may, on the adjournment oí the court, cause the journal to bo examined, and, finding that no notice of appeal has been given, he may well consider the cause as finally disposed of, and never make any preparation for a future trial of which he has never obtained information. He may be a non-resident, may leave the state immediately on the termination of the suit in the common pleas, and may not, for years, be in a situatio.n to receive notice. Unless the court making an order affecting his interests, nunc pro tunc, are also bound to carry information of the fact home to him, he may bo irreparably injured. I hold it is the duty of every court so to administer the law as to promote the substantial interests of the litigants, and even, if possible, to cure the errors and help out the mistakes of a party; but this is not possible where, by its interference, the interests of another may be injuriously'affected. The order which was made in this case must be regarded as void and not merely erroneous, and the motion to dismiss the appeal must prevail.

Motion granted. .  