
    Johnson v. Railway Company.
    
      Adjournment of court — Close of term — Bill of exceptions.
    
    Where the journal of a court of common pleas shows a regular adjournment from day to day, up to a day certain of the term, but no other adjournment thereafter during such term, except an entry of adjournment sine die on the last named day, which entry was, at the next succeeding term, by a nunc pro tunc order, stricken from the journal, as having been made through the mistake of the clerk, and further shows, that no judge was present, and no business was transacted in the court after such day certain, until the commencement of the next succeeding term, the adjourned term should be deemed to have closed on such day certain of the term as shown by the journal, and a bill of exceptions should be allowed, signed and filed within thirty days after the last named day.
    (Decided May 6, 1890.)
    Erbob to the Circuit Court of Madison county.
    
      George B. Cannon, and Harrison, Olds ¿f* Marsh, for plaint iffs in error.
    
      Charles Darlington, for defendant in error.
   By the Count.

In the court of common pleas of Madison county, at the February term, 1888, the plaintiff in error, Luther Johnson, as administrator of Andrew C. Martin, deceased, recovered a judgment against the defendant in error, The Pittsburgh, Cincinnati & St. Louis Railway Company, which judgment was rendered and entered May 26, 1888, that being one of the days of the February term. The railroad company took a bill of exceptions, which was allowed, signed and filed in the common pleas court on June 27,1888, a day of the May term of that court. On May 26, 1888, before noon, the judge of the court of common pleas directed that the sheriff adjourn the court without day. The sheriff not being present, the judge directed the clerk of the court to enter such adjournment on the journal of the court. But the prosecuting attorney, that he might attend to certain matters on the criminal calendar that were not disposed of, requested that the term of the court should not be finally closed until the afternoon of May 26, 1888, whereupon, the judge directed the clerk not to make the entry of final adjournment, and stated that he would be back at two o’clock that afternoon, to dispose of such matters. The arrangement and understanding that the judge was to be back at two o’clock was forgotten by him, and he did not return to the court room at that time, or at any other time after the last mentioned day, until May 29, 1888, when the succeeding May term of the court was open. No other judge of the court of common pleas was present in the court house after May 26, 1888, nor was the court opened, or any business done therein until the opening of the May term of the court on May 29, 1888. There was an entry made on the journal purporting to adjourn the court without day on May 26, 1888, but such entry was made thereon on May 28th, by the clerk, and was done without the direction or order of the court, and without any formal adjournment by the sheriff.

Afterwards, and during the May term, 1888, to wit: on June 29, 1888, the railroad company filed its motion for an order mmo pro tune, to strike from the journal the entry purporting upon its face, and on the face of the journal, to have been made May 26, 1888, adjourning the February term on that date, because of the mistake on the part of the clerk in entering the same. And on July 2, 1888, that motion was heard by the court of common pleas, and the court thereupon, to wit: at the May term, 1888, made and caused to be entered upon its journal the following order, to wit: “ It is therefore ordered and directed that the said record be so far corrected as to show no adjournment of said court without day on said 26th day of May, 1888, or any other time between said date and the 29th day of May, 1888, when the succeeding term commenced, and that said entry go for naught, and that said journal stand the same as though no entry of adjournment had been entered thereon.”

Held : That the circuit court erred in deciding as a matter of law, that, the February term, 1888, of the court of common pleas, did not finally end on the 26th day of May, 1888, but continued open by operation of law until the commencement of the next succeeding term thereof on the 29th day of May, 1888, and that, the bill of exceptions which was allowed, signed and filed in the court of common pleas on the 27th day of June, 1888, was allowed, signed and filed within thirty days from the close of the February term, 1888.

Judgment of the circuit court reversed, and that of the court of common pleas affirmed.  