
    Bradly v. Sneath.
    If, upon appeal from the common pleas to the Supreme Court, no bond is taken, the jurisdiction of the Supreme Court does not attach, and exception may be taken by the appellee, after trial and verdict agninst him.
    Appeal does not lie from a nonsuit, unless it is shown by the minutes that such nonsuit was ordered by the court.
    An appealed cause may be retained, that application may be made to amend in the common pleas.
    
      This case was adjourned from the Supreme Court in Seneca county, where it was docketed as an appeal from the common pleas. The proceedings of that court, as certified up under the-statute, show that the parties appeared, a jury was impaneleu there to try the issues, and that the plaintiff “ thereupon fails further to prosecute his suit, and the jury were discharged.” Judgment was rendered against the plaintiff for costs. He gave notice-of appeal. There is no evidence that an appeal bond was given. At the late term of the Supreme Court in Seneca, the cause was-tried to a jury, and a verdict found for the plaintiffs for eight hundred dollars damages. After verdict, the defendant moved the court to strike the cause from the docket for want of jurisdic491] tion, which was ^reserved for decision here. He also moved in arrest of judgment and filed his reasons, which the decision of the court makes it unnecessary to state.
    O. Parish, in favor of the motion, argued :
    The record of the common pleas shows that both parties appeared, and caused a jury to be sworn to try the issue, and then the plaintiff failed to prosecute his suit further. There was no action of the court in the controversy. The plaintiff voluntarily abandoned the prosecution. He voluntarily became nonsuit. From such a proceeding the plaintiff can not, by the law of Ohio, appeal. 29 Ohio L. 75, sec. 96, Practice Act. As well might the plaintiff have stood mute when called, and refused to answer (when he certainly must have been nonsuited), as to appear, impanel a jury, and then reiuse to say anything farther in his case. No matter in what language the record of the common pleas is made up. The fact that plaintiff became nonsuit is palpable on the face of the proceedings of that court. No matter whether this-proceeding is called nonsuit, discontinuance, retraxit, or dismissal, he can not appeal to the Supreme Court.
    The jury gave no verdict; they were discharged from all consideration of the cause. The record shows that the plaintiff appeared, but would not answer. He would do nothing. The court could not but pronounce the judgment of the law. In effect, they have said, on their record, “the plaintiff refusing to give any evidence of his demand, or attempt to give any such evidence, he jmust .be, he is nonsuited.” I give no attention to the attempt of the plaintiff to patch up the record. The memorandums of the president judge are not records. They are worthless, except they aid the clerk in making up the journals.
    C. L. Boalt, for the plaintiff
    In the court below, judgment of nonsuit was directed to be entered against the plaintiff for the alleged irrelevancy of his testimony. From this judgment the plaintiff appealed. In making his entry of the decision of the court, the clerk took no notice of the reason assigned for the nonsuit. At the term subsequent to these proceedings, the counsel of the plaintiff Amoved the [492' court to amend the entry of the clerk from the notes of the presiding judge. The defendant now moves to strike the cause off the docket. We object;
    1. The entry of the clerk was sufficiently full and explicit as-made. It was not necessary for him to notice the particular reason or grounds of the nonsuit on the journal or transcript, in order to perfect in the plaintiff his right of appeal.
    By statute, 29 Ohio L. 58, it is made the duty of clerks “ to enter and record all the orders, decrees, judgments, and other proceedings of the courts.” And in the practice act it is enacted that “for the purpose of preventing errors in entering judgments, orders, and decrees of each court, the judges thereof, before every adjournment, shall cause the minutes of their proceedings to be publicly read by their clerk, and corrected when necessary, and that these minutes shall be carefully kept among the records.” 29 Ohio L. 94. The necessary inference from these clauses of the statutes is that these minutes of the clerk constitute no part of the records.
    The clerk is to enter and record; the entries are to be preserved among the records; they are to be read for the purpose of detecting errors, and are ultimately to be used by the clerk in making-out a complete record of all the proceedings in the cause during the vacation Subsequent. This construction is fully recognizedjn Marvey v. Brown, 1 Ohio, 268, in which it is decided that “ these minutes can not be considered as the foundation for an assignment of errors.” The minutes are the data, the memoranda, to aid the recollection of the clerk afterward, when from lapse of time the leading facts might have escaped from his memory. Admitting that an omission of this kind would have vitiated, had it appeared upon the record itself, we believe that it may easily be overlooked in the minutes, which seldom contain but a part of the materials from which the record is formed.
    What is the duty of the clerk in case of appeal? He is to make an authenticated transcript of the docket or journal entries, and of the final judgment or decree. 29 Ohio L. 79. In the case before the court he has complied with this requisition to the letter. He has sent up a transcript of the docket and journal entries, and of the final judgment, that of nonsuit; and now, with this transcript on file after verdict and. damages found, a motion is made 493] to set the whole proceedings *on the appeal aside, because the transcript omits to state the reasons that induced the court below to nonsuit us.
    In sustaining this motion the defendant must assume one of the two following positions: 1. That the judgment should have been entered on the journal of the clerk as “a judgment of nonsuit for irrelevancy of testimony,” making the phrase “ irrelevancy of testimony” .a necessary adjunct to nonsuit, and descriptive of the judgment; or that the reasons for the decision of the court below should have appeared elsewhere upon the entry and transcript. In regard to the first position, we submit that no such judgment as that of “nonsuit for irrelevancy of testimony,” as distinct from that of nonsuit without such adjunct, is known to the law. True it is, that under our statute a plaintiff can appeal from a judgment of nonsuit in three specified cases only. But in making provision for these cases, we see no reason for the belief that the legislature contemplated any new judgment, or any change in the form of entry. If so, the several circumstances that confer upon the plaintiff the right of appeal should be entered upon the journal as matter of'description in other cases as well as in this. We should then have in our practice and upon our records not only the new, (and before the passing of the act above referred to) unknown, and unheard-of judgment of “nonsuit for irrelevancy of testimony,” but likewise the equally unheard-of and uncouth judgments of nonsuit, by reason that the testimony adduced did not support the case in the declaration, “ and the judgment of nonsuit, by reason that the testimony was arrested from the jury.”
    If the second position be well founded, it becomes incumbent upon the clerk, not only to enter the judgment of nonsuit itself, but also the reasons that induced the court to pronounce such judgment. The court is to make an entry (in the language of the statute) “ of the orders, decrees, judgments, and other proceedings.” From this it would seem evident, and it accords with the-practice of this officer, that he is to note down certain facts, and not opinions on the evidence of those facts — judgments, and not the grounds or reasons of those judgments. We are well aware-that it has been repeatedly decided that a plaintiff could not appeal from a judgment of nonsuit. But the present statute which confers that right, under certain circumstances, has prescribed no new form for the entries of the clerk, nor in terms, imposed upon him any additional duties. *Had such been the intention [494 of the legislature, would they have been silent in a matter so im-' portant to parties and to the ends of justice? In thus providing a remedy for a,plaintiff, who had been wrongfully turned out of . court, is it reasonable to suppose that .they would, in this manner, designedly have left in his path such a nicely-covered pitfall to-entrap and destroy him? Would they not have specially pointed out the duty of the clerk in such cases, and in so doing made the remedy effectual ? But we have no such special provision in the statute, and conceive that the manner in which the duty of the clerk, in appeal cases, is pointed out, excludes the inference that any was intended. The rule above referred to of the practice act applies to all cases alike — to appeals in nonsuit as well as in . others. “ The clerk is to make an authenticated transcript of the-docket or journal entries, and of the final judgment or decree.”
    Should the court be against us on our first ground, they will allow us to amend the journal entries and transcript, and continue the cause to allow time for the motion to that effect in the court below.
    At common law, we admit that the judgment record and other memorials of the proceedings of courts could be amended only during the same term in which the proceedings took place. The-doctrine was, that such proceedings might be amended while infieri, and they were so considered in fieri during the term in which they transpired. But this ancient strictness is done away, and where justice requires it, amendments are allowed at any time during suit on the proceedings; and these are considered in fieri for the purposes of amendment until final judgment and record-enrolled. This, it seems, was the common law doctrine, 6 Davies’ Ab. 184, before the statutes of jeofails. At common law, as no-final record is yet made up in this case, we have a-right to amend the journal entry.
    The books are full of instances in which amendments have been ■directed under circumstances against the applicant stronger than those here presented. We ask merely for permission to amend, for the purpose of showing the true cause for which judgment was ■directed to be entered against us, and for leave to do this from the notes of the presiding judge. It is not an application to alter the •effect or operation of the judgment of this court, but to supply on the transcript the facts that lead to it, in order that it may be good 495] as it stands, not in matter of ^substance, but in matter of form merely for misprision of the clerk.
    The slips and mistakes of the clerk are more favored than those •of the party. 1 Johns. 276; 6 Dan. Ab. Ch. 184; Salk. 50; Cro. Eliz. 760.
    In 3 Johns. 526, the action was entered by warrant of attorney, but by the attorney’s negligence the defendant’s plea was not .signed by him, and appeared nowhere upon the face of the record. The opurt allowed the plaintiff to amend the record nunc pro tunc by inserting that name, though an after judgment had been given against the defendant on which a performance was claimed. For the practice of our own courts, see 2 Ohio, 32; 1 Ohio, 375; 5 Ohio, 337, which seem full to the point.
   Judge Wright

delivered the opinion of the court:

Two objections are made to the jurisdiction of this court:

1. The want of an appeal bond.

2. That the appeal, if taken, is from a voluntary nonsuit.

As to the first objection, it has been repeatedly decided that the •appeal bond, in due time and form, was necessaiy under our system to remove a cause by appeal from the common pleas; and whatever may be our individual opinions upon the expediency of those decisions, they have been made and acquiesced in, and it is improper for us to change them. The statute expressly provides that parties desirous of appealing from the judgments of the court of common pleas, shall do the following things to effect the appeal: 1. Give notice during the term when the judgment,is rendered, on the minutes of the court, of the intention to appeal. 2. File within thirty days after the last day of that term with the clerk a ■bond to the other party, in at least double the amount of the judgment, conditioned to pay the condemnation- money and. costs in the Supreme Court, if judgment shall-be-entered there in favor of the appellee, and with security to be approved of by the clerk.. 29 Ohio L. 78. A compliance with these requisitions is held necessary to vaeate the judgment of the court of common pleas. The jurisdiction of the Supreme Court only attaches to the case when the judgment rendered in the court of common pleas has been thus vacated. If the parties to a judgment, after its rendition, should agree orally, or in writing, that the judgment was vacated, would such agreement have the legal effect of vacating the judgment ipso facto? Were suit brought on the original cause *of action after such agreement, and former recovery was [498 pleaded in bar, could the plea be avoided by replying over the agreement? Upon common legal principles the replication would be adjudged bad on demurrer. Judgments can not be discharged by parol; inchoate rights may be. We are asked in the ease at bar to take jurisdiction without evidence that the judgment of the common pleas has been vacated. That a compliance with the requisitions of the statute is essential to the jurisdiction of this court, has been held in Wilson v. Holman, 2 Ohio, 253; Bliss v. Ling, 5 Ohio, 276, and ante, 34, and by numerous decisions on the circuit not reported. A jurisdiction dependent upon the agreements of parties only constitutes the judges arbitrators; and if they act at all under such authority, they act as arbitrators — not as public ministers of justice. It is, however, insisted that a bond was in fact filed. It would be convenient if the clerks of tho common pleas would send up with the papers either the original bond or a copy of it. He is the judge of the sufficiency of the security, and should indorse on it the fact of his approval and the time of filing. These facts appearing in the proceedings certified up, the delays now so frequent, occasioned by disputes in relation to these facts, would be avoided, and this court would know whether its jurisdiction attached to the case. The fact of there being a bond in this case can be shown, if it exist.

Will an appeal lie from a voluntary nonsuit ? The act of assembly, 29 Ohio L. 75, provides for an appeal, when the court order a nonsuit by reason of the irrelevancy or insufficiency of testimony to support the plaintiff’s declaration, and where non-suit results from the courts arresting the testimony from the jury. All these cases, which are exceptions from the common rule, suppose the interposition of the court. This is essential to the appeal. The case before us shows no such interposition. The common rule does not allow an appeal from a voluntary nonsuit. It is, however, urged that by the docket of the judge presiding in the court of common pleas, it does appear that the court below ordered the nonsuit.

"We are asked to amend the entries of the court of common pleas so as to conform them to the minutes. We can only notice the proceedings of the court of common pleas when property certified to us. The objection made to such amendment, that it is matter of record, has no legal foundation. By the present law, 497] no record is made in the court of common *pleas, when a case is appealed, unless ordered by one of the parties; the original papers, with a copy of the journal and docket entries, are sent up. If the case, then, was appealed, there is probably no record — none of course, or without the special order of one of the parties, and no such order appears. Nothing remains in the common pleas but the docket and journal entries of the proceedings and judgment of the court. The docket kept by the presiding judge contains his original minutes of the doings of the court. It is from this the clerk generally makes his journal entries. We see no impropriety in that court correcting the mistakes of their clerk in transcribing these minutes — correcting them by the original entries. It would be strange if the law prohibited such correction. The whole proceedings of the court of common pleas, if the cause has been appealed, is in paper, and may be examined, and any error of fact corrected. The decision on the motion may be suspended, to afford time to examine into the matter.

But the suit was commenced in August, 1823; the fourth count in the declaration alleges the words to have been spoken at the next term after when the declaration was filed. While examining, it may bo well for counsel to inquire how to avoid this difficulty.  