
    N. Torbet v. G. Coffin.
    An appeal from the judgment of a justice, produced to be docketed in the common pleas, at the second term after it is taken, an objection to its-being docketed overruled; issue made, and prosecution to final judgment. It is not too late to revise the order docketing the appeal on writ of error-
    Appeal from the judgment of a justice must be docketed at the first term of the common pleas to which it is taken.
    This was a writ of error to a judgment of the court of common pleas of the county of Fayette. The case presented is as follows:
    On March 28,1828, Coffin recovered a judgment against Torbet, before Samuel Loofborougb, a justice of the peace, for seventy-five dollars and costs. From this judgment an appeal was regularly taken, by Torbet, to the next court of common pleas, and perfected before the justice. At the June term, 1828, being the term of the court of common pleas of Fayette county, next, succeeding the rendering of the judgment, the appeal was not docketed, or any notice taken of it in court. At the September term, 1828, being the second term, the appellant appeared, and moved to docket the appeal, upon an affidavit of his counsel, that the omission to docket it at the first term was in consequence of an agreement with the plaintiff, that if the appeal was not docketed he would discontinue the suit, or cancel the judgment. The court allowed the appeal to be docketed. Pleadings were proffered, and an issue of fact finally made and submitted to the court for trial, who found for the defendant, and entered judgment accordingly. To reverse this judgment the writ of error is-brought, and the principal error assigned was the docketing of the appeal at the second term.
    *R. Robinson, for the plaintiff in error,
    contended that this [34-was a case where the terms of the statute were peremptory, and no discretion was confided to the court. He cited 4 and notes in 1 Cond. Rep. 260.
    No argument was submitted for the defendant in error.
   Judge Lane

delivered the opinion of the court:

The plaintiff in error, having pleaded to the action, made an issue and taken a trial on the merits, it is suggested that his objection to the docketing the appeal comes too late. The course of decisions which we have found seems to have established the practice that where the ground of objection appears in the record, and the party has resisted the jurisdiction, as far as he was permitted, his submitting to proceed and try the cause on its merits, does not preclude him from taking the exception in the revising tribunal.

The next question presented is, is it competent for the court of common pleas to place an appeal from the judgment of a justice upon the docket at any other term than that to which the appeal was taken ? The court answer this question in the negative. Perhaps cases may occur in which the common pleas ought to allow such appeals to be docketed on a day subsequent to the second day of the term to which they were taken. This would be where, by accident or mistake, and without the neglect of the appellant, or by the contrivance of the appellee, the appeal was not docketed on the second day. For some purposes the term is considered an entire day, and the journal of every day, so long as the term continues, is open to the correction of the court. After the close of the term, it is holden that the court can enter no order nunc pro tunc, unless one was actually made, and omitted to be entered. 1 Ohio, 375 ; 3 Id. 486, 575.

The authority to set aside an irregular judgment, at a subsequent term, does not imply a power to enter a judgment where none existed before. 3 Ohio, 16. Where no appeal is entered at the term next succeeding the day the - appeal was taken, the parties are beyond the jurisdiction of the appellate court, and can not be recalled, as the law now stands. The remedy, if a case is made for one, must be sought in chancery. 4 Ohio, 190.

Judgment reversed.  