
    No. 516
    No. 19529
    Abner G. Webb, et al. v. Western Reserve Bond & Share Co., et al.
    Error to the Counrt of Appeals of Trumbull County.
    941. PRACTICE AND PROCEEDURE.
    Where facts are undisputed and material issues conceded, it is the duty of the court to direct a verdict, and it becomes the action of the court and not of the jury.
    857. NUNC PRO TUNC.
    If judgment and verdict of the court are erroneous by reason of mistake of the clerk of court at a subsequent term may be amended by such an entry.
    719. LIENS.
    Where motion was made for a nunc pro tunc entry and preexisting creditors having knowledge that the faulty judgment had been rendered against one of the parties only, and having knowledge that all the parties supposed it was rendered against the owner of the premises, filed against the other party in attachment, such creditor’s did not obtain priority against plaintiff’s judgment lien.
   JONES, J.

1. If the material issues are conceded or are established beyond dispute, it is the duty of the court to direct a verdict against the party failing of proof on such issue. The verdict responsive of the decision, and direction of the court, becomes the action, not of the jury, but of the court.

2. If the verdict and judgment thereon, by reason of the mistake and omission of the clerk, does not respond to the court’s decision and direction the trial court may, at a subsequent term, amend the judgment rendered at the former term, as against the parties to the suit, by a nunc pro tunc entry so as to make the judgment accord with the decision actually rendered by the trial court at the former term.

3. At a subsequent term, on January 20, 1923 the plaintiff filed a motion for an order nunc pro tunc, to so correct its judgment as to make it speak the truth in respect to the court’s decision made at the former term.

On the same day pre-existing creditors with knowledge at the time that a judgment had been previously rendered against one of the parties only and having knowledge that all the parties supposed that it was also rendered against the owner of the premises, filed their petition in attachment against such owner; the attachments were levied on the premises at a time subsequent to the filing of plaintiff’s motion for such nunc pro tunc order.

HELD:— That such pre-existing creditors did not obtain priority as against the plaintiff’s judgment lien. ■

Judgment affirmed.

Marshall, C. J., Jones, Matthias, Day and Kinkade, JJ., concur.  