
    Webb et al. v. The Western Reserve Bond & Share Co. et al.
    
      Directed verdict — Court to direct verdict where issues conceded or established, when — Verdict becomes action of court and not jury — Judgment may be amended after term by entry nunc pro tunc — Mistake or omission of clerk as to court’s decision or direction — Attachment— Lien of pre-existing creditors not prior to plaintiffs lien, when — Attachment levied after motion filed for order nunc pro tune.
    
    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 issues. The verdict, responsive to 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, do 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 Hen.
    (No. 19529
    Decided June 15, 1926.)
    Error to the Court of Appeals of Trumbull county.
    This' cause was instituted in the court of common pleas upon the petition of the defendant in error filed for the purpose of marshaling liens. The common pleas court having rendered judgment in faimr of the Western Reserve Bond & Share Company, the cause was appealed to the Court of Appeals. That court tried the case de novo and also rendered judgment in favor of the Western Reserve Bond & Share Company. In the Court of Appeals separate findings of fact and conclusions of law were made.
    ■ For the purpose of brevity, the Western Reserve Bond & Share Company '■ will be alluded to a's 'the Bond Company;' the Niles Trust Company, as the Niles Company; the Dollar Savings Bank Company, as the Dollar Company; and the Ohio Steel Products Company as the Products Company. The Central Savings & Loan Company will not he further alluded to, since it is conceded that it had a first lien upon the real estate in controversy.
    The facts found by the Court of Appeals are as follows: On September 7, 1921, the Bond Company brought an action against the Products Company and John A. Logan, the owner of the premises in question, seeking a personal judgment against them on promissory notes of the Products Company, indorsed by Logan. The Products Company and Logan filed a joint answer and cross-petition in that cause; the plaintiff filing a reply thereto. The cause came on to be heard before the court and jury. In the course of the trial, and at the close of all evidence, the plaintiff Bond Company asked the court to “take this case from the jury and direct a judgment for the plaintiff in this action,” etc. This motion was sustained by the trial court, the court saying to the jury:
    “Members of the jury, at the conclusion of all the testimony a motion was made on the part of the plaintiff that the court instruct the jury to render a verdict for the plaintiff on these two causes of action, with interest from the date of the two notes thus set up in the two causes of action to the first day of this term of court, which was January 9th. The court has sustained that motion and will therefore relieve the jury of making any mistake in this case, and assume all the responsibility. Your only duty will be to retire to your jury room and figure up the amount' of interest due upon these two notes and return a verdict in favor of the plaintiff for that amount: Defendant excepts; you may now retire.”
    This action was taken on April 7, 1922. On that day, after hearing the charge of the court, the jury rendered a verdict as follows: '
    “We, the jury, being duly impaneled and sworn and affirmed, find the issues in this case in favor of the plaintiff and assess the amount due to the plaint-tiff from the defendant the said Ohio Steel Products Company at the sum of $23,527.07.”
    Thereafter, on May 15, 1922, the clerk caused the following entry to be made on the journal: “This cause now coming on for hearing on the motion of the defendant for a new trial, the court on consideration overrules the same. It is therefore considered by the court that the said plaintiff the Western Reserve Bond & Share Company.recover from the said the Ohio Steel Products Company the said sum of twenty-three thousand five hundred twenty-seven dollars and seven cents ($23,527.07).”
    The finding of facts discloses:
    “That none of the parties to the action was aware of the fact that the verdict ran only against the Ohio Steel Products Company, because bbth defendants filed a joint motion for the new trial; and both prosecuted error to the Court of appeals, and both filed a motion in the Supreme Court to have the record below certified, and both exercised every remedy provided by law to have the judgment reversed.”
    The Bond Company in August, 1922, issued an execution against the Products Comjjany, which remained unsatisfied, and in December of that year another execution was issued, and an affidavit in aid of execution also issued against the defendant Logan, who was examined before a referee. On January 20, 1923, having learned that the judgment did not run against Logan, the Bond Company filed its motion in the common pleas court, asking that “the judgment of this court in the above-entitled action be modified nunc pro tunc, so that said judgment shall include the name of defendant John A. Logan, in addition to the name of defendant the Ohio Steel Products Company,” alleging as a reason therefor that, by reason of mistake, neglect, omission, or irregularity in obtaining said judgment, the name of Logan had been omitted by the clerk in entering judgment for the plaintiff. A hearing was had upon that motion, and on February 3, 1923, the court caused the following entry to .be made on its journal:
    “This cause being heard on the motion of plaintiff to modify a judgment heretofore rendered at a former order of this court, to wit, April 7, 1922, and May 15, 1922, on the ground of irregularity and mistake, and omissions in the securing of said verdict and judgment, and the parties now being present in court or represented by counsel, the court finds that the clerk, in making out the verdict, failed to insert the name of John A. Logan, and that the court instructed a verdict for plaintiff as against both defendants on both causes of action, and that the journal of the court fails to show judgment against the said John A. Logan. And, after full consideration thereof, the court finds that the name of John A. Logan should have been inserted in said verdict and judgment, as the court directed the jury to return a verdict against both defendants on both causes of action.
    “The court further finds that said name was omitted by inadvertence, and it is hereby ordered that the said verdict and judgment be corrected and entered by the clerk of this court upon the journal of this court as of the dates of April 7, 1922, for the verdict, and May 15, 1922, at the May term of said court, for the judgment, inserting the name of John A. Logan, to conform to the order of the court when the jury was directed to return a verdict on both causes of action against both defendants; to all of which the defendant John A. Logan objects and excepts.”
    On the same day that the Bond Company filed its motion for an entry of judgment nunc pro tunc, to wit, January 20, 1923, Webb and Young filed their petition for personal judgment upon a debt created and due in the year 1919, and at the same time filed an affidavit of attachment against the defendant Logan, and a levy was made upon his premises by the sheriff on the 22d day of January, 1923. In the following April the attachment was sustained and judgment rendered in favor of Webb and Young against Logan.
    The Niles Company and the Dollar Company filed their petitions and affidavits in attachment on January 27, 1923, and the premises of Logan were levied upon the 29th day of that month. In the following April, judgments were rendered in favor of those plaintiffs and the attachments were sustained. In August, 1923, Webb and Young filed another petition and affidavit in attachment against Logan, and on December 19, 1923, the attachment was sustained and judgment entered in favor of Webb and Young against Logan on the suit, instituted in August.
    The Court of Appeals, among other facts, found the following:
    “ (16) The court finds that the defendants Abner Gr. Webb, L: H. Young, the Dollar Savings Bank Company and the Niles Trust Company are not innocent lienholders with intervening rights, but, on the contrary, are pre-existing creditors whose debts accrued before the judgment above referred to was entered, and, furthermore, that these defendants and their counsel were advised before their suits and attachments numbered 18891, 18918, and 18919 set out in their cross-petitions were filed, that all parties to the original suit had supposed that the judgment ran against John A. Logan, although they knew nothing else beyond the entries on the appearance dockets and the journals of the common pleas court and Court of Appeals in said case, and that they were therefore not innocent parties, nor were they misled by the error referred to, having had both actual and constructive knowledge before the said suits were instituted.”
    The Court of Appeals, as did the common pleas court, rendered judgment in favor of the Bond Company, giving its judgment preference over the attachment liens of the aforesaid attaching creditors. Thereupon plaintiffs in error instituted their action in this court seeking to reverse the judgment of the Court of Appeals.
    
      Messrs. MacQueen S Giffen, and Messrs. Snyder, Henry, Thomsen, Ford S Seagrave, for plaintiffs in error.
    
      Messrs. Tolies, Hogsett, Ginn S Morley, for Western Reserve Bond & Share Co.
    
      Messrs. Kennedy, Manchester, Conroy é Ford, for Central Savings & Loan Co.
    
      Messrs. Squire, Sanders & Dempsey, for defendants in error John A. and Margaret Powell Logan.
   Jones, J.

Two questions were argued and presented to this court for determination: (1) The power of the trial court, after term, to enter the nunc pro tunc judgment of February 3, 1923, and its. effect upon the parties to that suit; and (2) whether such nunc pro tunc entry can affect strangers to that suit, where such strangers are found to be pre-existing creditors who had knowledge at the time their attachment suits were filed “that all parties to the original suit had supposed that the judgment ran against John A. Logan.”

First. It is claimed that the trial court had no power to modify its judgment nunc pro tunc, for the reason that such action would be a modification of the jury’s verdict. Under the authorities of this state, and elsewhere, that contention cannot be sustained. This judgment was the action of the court and not of the jury. The trial court found that the latter were instructed to return a verdict for the plaintiff on the two causes of action against both defendants who answered jointly. The trial court stated to the jury that, in instructing them to render a verdict for the plaintiff, he relieved the jury of making any mistake and assumed all responsibility. The action of the trial court in directing a verdict on the issues joined between the parties is not a new procedure; it is frequently exercised in our practice, and this court has on many occasions recognized that right. The power to direct a verdict cannot be questioned; but, if the court errs, its judgment is subject to review in its application of the law to the facts not in dispute. That feature of the case is not now before us, for it is presumed that the court acted correctly, since the findings of fact show that the Products Company and Logan filed a joint motion for a new trial, and both prosecuted error to the Court of Appeals, and later filed a motion in this court to have their record certified. As stated, this court has frequently upheld this power in the trial court, and has declared the law to be that, where the material facts in controversy are admitted, and not in dispute, it is not only the function, but the duty, of the court to direct a verdict. As stated by Ranney, J., in Ellis & Morton v. Ohio Life Ins. & Trust Co., 4 Ohio St., 628, 645 (64 Am. Dec., 610):

“The law of every case, in whatever form pre: sented, belongs to the court; and it is -not only the right of the judge, but his solemn duty, to decide and apply it.”

And in the case of Cincinnati Gas & Electric Co. v. Archdeacon, Adm’r., 80 Ohio St., 27, at page 39, 88 N. E., 125, 127, Shauck, J., very pertinently observed:

“It is subversive of the public.interests and pro-motive of no right of either party to continue a contest before a jury when nothing is involved but the application of the law to a state of facts conclusively established.”

For additional authorities, see Cornell v. Morrison, 87 Ohio St., 215, 100 N. E., 817, Bassenhorst v. Wilby, 45 Ohio St., 333, 13 N. E., 75, and Sobolovits v. Lubric Oil Co., 107 Ohio St., 204, 140 N. E., 634. This procedure is also recognized by the federal courts. In the case of C., M. & St. P. R. R. Co. v. Coogan, 271 U. S., —, 46 S. Ct., 564, 70 L. Ed.. —, decided June, 1926, Mr. Justice Butler in the course of his opinion said:

“It is the duty of a trial judge to direct a verdict for one of the parties when the testimony and all the inferences Avhich the jury reasonably may draAV therefrom would be insufficient to support a different finding.”

Having held that the action of the trial court in the instant case was one by the court and not by the jury, it is well established that, if the entry of the court does not actually speak the truth, the trial court has the power, after the term, to make an entry nunc pro tunc showing not what it might have decided, or have intended to decide, but what it actually did decide.

Section 11631, General Code, par. 3, authorizes the common pleas court to modify its own judgment after the term for a mistake or irregularity of the clerk. In its entry of February 3, 1923, the court finds that it had directed a verdict for plaintiff against both defendants, and that the clerk had inadvertently omitted the name of Logan from the verdict, whereas it should have been inserted in both the verdict and judgment rendered at the time. Since the entry at the former term did not speak the truth, the exercise by the court of its power to make it so speak is binding upon the parties to the action, and, as to them, the judgment nunc pro tunc relates back to the time that it was actually rendered. Whether or not the trial court erred in correcting the judgment and finding, that he actually made the decision referred to cannot now be questioned by the parties to that action, since this would be a collateral attack upon the nunc pro tunc judgment of February 3, 1923, which could only be reviewed by direct proceedings in error seeking to reverse that judgment. The power of the court in ordering nunc pro tunc entries after term extends to the power to make the journal entry speak the truth. Reinbolt v. Reinbolt, 112 Ohio St., 526, 147 N. E., 808; Jacks v. Adamson, 56 Ohio St., 397, 47 N. E., 48, 60 Am. St. Rep., 749; Homeseekers’ Loan Ass’n. v. Gleeson, 133 Cal., 312, 65 P., 617.

Second. A question of greater importance is Avhether, under the facts found by the Court of Appeals, the plaintiffs in error, as pre-existing creditors, especially Avith the notice they had, obtained any priority as against the amended judgment of the Bond Company. All of them were preexisting creditors whose debts accrued'before the original judgment was rendered; none of them were innocent or bona fide purchasers for value at the time they filed their petitions and attachments. The first of these petitions were filed on the same day that the motion nunc pro tunc was filed.

The law touching that subject is found in the text-books as follows: “If one not a party to the action has, when without notice of the rendition of the judgment or of the facts from which such notice must be imputed to him, advanced or paid money or property, or, in other words, has become a purchaser or incumbrancer in good faith and upon a valuable consideration, then the subsequent entry of such judgment nunc pro tunc will not be allowed to prejudice him; otherwise, its effect against him is the same as if it had been entered at the proper time.” 1 Freeman on Judgments, Section 138.

Or, as elsewhere stated: “A judgment entered nunc pro tunc on an official bond takes effect as of the date for which it is entered, as against creditors of the judgment defendant who have in the meantime obtained judgment liens for pre-existing obligations, when it does not appear that they have been misled, or have parted with value, or acquired rights during the interval elapsing between the date of the judgment and the time of making the nunc pro tunc entry.” 15 Ruling Case Law, p., 629.

Both of these texts, as well as other adjudicated cases, cite the case of Leonard v. Broughton, 120 Ind., 536, 22 N. E., 731, 16 Am. St. Rep., 347, wherein the syllabus supported the text’. In the discussion of that case, the judge, delivering the opinion, said:

“It -appears from the facts averred that the judgments in favor of the appellants were rendered upon pre-existing obligations, their rights were fixed prior to the rendition of the judgments, and it does not appear that they were misled or that they parted with anything of value, or acquired any rights during the interval which elapsed between the date the judgment should have been properly entered and the making of the nunc pro tunc entry, except that they acquired a judgment lien; and the rule is that the general lien of a judgment creditor upon lands of his debtor is subject to all equities' existing against the lands of the judgment debtor in favor of third persons at the time of the recovery of the judgment.”

The rule in the Broughton case was applied in Davidson v. Richardson, 50 Or., 323, 89 P., 742, 91 P., 1080, 17 L. R. A., (N. S.), 319, 126 Am. St. Rep., 738, and is also supported in principle in Close v. Gillespey, 3 Johns. (N. Y.), 526.

It will be noted that in the case at bar the motion to amend the original judgment nunc pro time was filed on the same day that the first petition in attachment was filed. This motion, therefore, was constructive notice from that time. Furthermore, each attachment was levied by the sheriff upon the property of Logan two days or more after January 20, 1923, when the Bond Company filed its motion for a nunc pro tunc modification of its original entry.

The Court of Appeals found as a fact that the attaching creditors are not innocent lienholders with intervening rights, but they, “on the contrary, are pre-existing creditors whose debts accrued before the judgment above referred to was entered, and, furthermore, that these defendants and their counsel were advised before their suits and attachments * * * were filed that all parties to the original suit had supposed that the judgment ran against John A. Logan.”

While plaintiffs in error knew nothing else beyond the entries oh the appearance dockets and journal of the common pleas court, there is a definite finding that the attachment creditors were advised that all parties to the original suit supposed that the judgment ran against Logan. The Court of Appeals, therefore, found that they were not innocent lienholders with intervening rights, and that they were not misled by the error that crept into the original judgment, “having had both actual and constructive knowledge before such suits were instituted.” “A nunc pro tunc entry will not be allowed to affect injuriously the rights of innocent third parties who have acquired rights without notice of the rendition of any judgment.” 15 Ruling Case Law, p. 628.

The case of Coe v. Erb, 59 Ohio St., 259, 52 N. E., 640, 69 Am. St. Rep., 764, has been cited by counsel for both parties in this case. But there it appears that, besides other infirmities in the original judgment, the intervening third party was a bona fide purchaser for value of the premises in question, and he had no notice of the rendition of any judgment whatever. In the course of the opinion, at page 266 (52 N. E., 642), Judge Sp¿ar said, in respect to this bona fide purchaser, that “it would seem to follow necessarily that, where the innocent purchaser has had no notice of the application for the order nunc pro tunc, the judgment so ordered entered should not be held to preclude him. ’ ’

It therefore follows that under the facts found by the Court of Appeals, since the intervening. attachment creditors were all pre-existing creditors and had been definitely advised before their suits were filed that all parties to the original, suit supposed that the judgment ran against Logan, whose premises they subsequently attached, those creditors obtained no priority, in equity, as against the amended judgment of the Bond Company.

The judgment of the Court of Appeals is therefore affirmed.

Judgment affirmed.

Marshall, C. J., Matthias, Day and Kinicade, JJ., concur.  