
    *Michael Davis v. Everett Messenger.
    Where the judges of the court of common pleas, under the act of April 12,1858, fixed the times for holding the courts of their district, and issued their order specifying that the several terms would commence at 10 o’clock a. m. on the day so fixed, which order was entered upon the journals of the courts, as required by said act; and where the journal of a court held under such order showed that the court convened on the day so fixed: Held—
    1. That under the provisions of said act, the record is conclusive evidence that the term of the court began at 10 o’clock a. m. on the day named in the order; and that it is not competent to prove that the court, in fact, opened at an hour later than that shown by the record.
    2. That the lien of a judgment, which under the statute began on the first day of the term, attached from 10 o’clock a. m. on the first day of the term of the court fixed pursuant to said act, although the court may not have convened until after noon on that day; and such judgment lien is prior to that of a mortgage delivered for record at 11 o’clock a. m. on the same day.
    Error to tbe district court of Union county.
    Tbe case is stated in tbe opinion of tbe court.
    
      P. B. Cole, J. W. Robinson, and George Lincoln, for plaintiff in error:
    1. Tbe records of tbe court of common pleas of Union county sbow that that court commenced its May term, 1859, on tbe 9th day of that month, at 10 o’clock a. m.
    Tbe act of tbe legislature authorizing tbe judges to fix tbe time for bolding courts; declares “ that tbe judges of tbe court of common pleas shall issue their order specifying precisely tbe commencement of tbe terms of tbe common pleas and district court.” 55 Ohio L. 83, sec. 9.
    In obedience to this law, tbe judges of the court of common pleas did fix tbe time for bolding tbeir courts, ordering as follows: “ In-all of said counties tbe said several terms of said courts will commence on tbe first day at 10 a. m.”
    In obedience to tbe foregoing order and law, the court of common pleas did meet in Union county, at its May term, 1859, and made and preserved on its journal tbe following record and memorial: “Monday, May 9, 1859. This day tbe court of common pleas. for the county of Union, in the State of Ohio, convened in pursuance to law.”
    It will be observed that the law and the order fixed the ^commencement at 10 o’clock A. m. And thus it is shown by the record that the court did commence at that time.
    2. It is not admissible to explain or contradict this record by parol evidence, because — (1.) The commencement of a term is a fact which the law requires to be reduced to writing and kept as a public memorial of the fact; and (2.) It is not competent to prove by oral evidence a fact which the law .requires to be in writing. 2 Stark. Ev. (6 Am. ed.) 571; Arnold v. Smith, 5 Day, 150; Wood v. Newkirk, 15 Ohio St. 298; 3 Bla. 24.
    The record of a court can not be impeached in a collateral proceeding. Boswell v. Sharp, 15 Ohio St. 447; Richards v. Skiff, 8 Ib. 586; Hammond v. Davenport, 16 Ib. 177.
    The entry of the order of the judges fixing the terms of court, is made full and sufficient evidence as to the legal terms for holding court as therein ordered, and, we claim, conclusive evidence that the court met as therein ordered. 55 Ohio L. 83, see. 10.
    3. Both liens are purely legal, depending upon statutes. If there be any difference, in equity, between them, it is in favor of the plaintiff’s. His papers were ready for judgment at 10 o’clock.
    
      O. Bowen, for defendant in error:
    It was the duty of the district court that tried the case to find whether, on the 9th of May, 1859, there was such a court in session as could render a judgment before 11 o’clock a. m.
    The record was read to the judges, and failed to enlighten or convince them on the subject. It did not show the hour, but only the day the court convened. The district court was therefore constrained to hear other evidence — to listen to witnesses as to the precise hour when the common pleas commenced its session. That was done, and the issue was found for the defendant. On the record evidence alone, the finding could not, as I can see, have been for the plaintiff.
    A liberal and fair interpretation of the language used in the statute warrants no other conclusion, it seems to me, than that the judges shall have authority'to fix the day of the commencement of the term, not the hour.
    
    *As to the words “ specifying precisely the commencement •of the term.” The language and directions of the law would be plainer, and more in accordance with the intent of those who framed it, if those words were stricken out, and the words “ specifying the day of the commencement of the term” inserted.
    As to the order fixing the terms of the court, providing that “the courts will .convene on the first day, at 10 o’clock a. m.” The making of such an order without any authority of law, and the impossibility of carrying it into effect, should not be treated as conclusive proof that the common pleas did, notwithstanding all the casualties which interrupt, delay, and often defeat judicial proceedings from going on at the precise hour or on the precise day appointed by law, unmistakably commence its term at precisely 10 •o’clock, May 9th.
    It appearing, then, that the plaintiff did not recover his judgment before 11 o’clock, May 9th, the mortgage of Messenger, having become a lien on the land at that hour, has preference over the judgment, although the latter was obtained on the same day, but after 11 o’clock. Follett v. Hall et al., 16 Ohio, 111; Holliday v. Franklin Bank, 16 Ohio, 533.
    
      W. H. West, for plaintiff in error, in reply:
    1. A judicial record imports absolute verity, and can not be collaterally impeached.
    2. The evidence furnished by a judicial record, whether of matter stated therein, or of presumptions founded on or arising out of the same, is not prima facie in its character, but conclusive, and not rebuttable.
    
    Among the presumptions arising out of a judicial record are the following:
    (1.) That the court, in convening and conducting the business thereof, complied strictly with the requirements of the law, unless the contrary shall be apparent on the face of the record.
    (2.) That the language employed in the record was intended to express the fact of such compliance, and will be so interpreted, unless it be incapable of such interpretation.
    *These presumptions can no more be impeached or contradicted, collaterally, than can the express terms of the record.
    The cases in 16 Ohio, 111 and 533, do not involve any impeachment of judicial records.
   Day, C. J.

A brief statement will present the principal question to be considered in the determination of this case.

The plaintiff, Davis, recovered a judgment against Joseph Johnson, in the court of common pleas of Union county, at a term which began on the 9th day of May, 1859. The judgment became a lien •on one hundred and twenty-seven acres of land owned by Johnson. The land was mortgaged by Johnson to Messenger, the defendant, and the mortgage was left for record on the 9th day of May, 1859, at 11 o’clock a. m.

The land was subsequently sold upon proceedings to which the plaintiff was not a party; thereupon he brought his action to recover the proceeds of the sale, claiming that his judgment lien was prior to that of the mortgage. The parties were at issue on this question; and, on the trial in the district court, the plaintiff gave in evidence an entry upon the journal of the court of common pleas, whereby it appeared that the judges of the judicial district embracing the county of Union had fixed the times for holding the several terms of the court of common pleas of that county for the year 1859, and had issued their order, “ specifying precisely the commencement of the term,” in May, to be on the '9th day of that month, at 10 o’clock a. m. The plaintiff also gave in evidence an entry on the journal of the court of common pleas, showing that the court convened on the 9th day of May, 1859; but the hour at which the court opened is not mentioned, further than is contained in the statement that the court convened on that day “inpursuance of law.”

The defendant then called witnesses to prove that the court did not commence its session until after 11 o’clock a. m. To this evidence the plaintiff objected; but the court overruled the objection, and admitted the testimony. To this ruling the plaintiff excepted.

The court found that the session of the common pleas was not commenced until after 12 o’clock, noon, on the 9th day of •KMay, 1859; and that before the court opened its session — at 11 o’clock a. h., on the same day — the mortgage was filed for record. The court held that the lien of the mortgage was prior to that of the judgment, and rendered a decree against the plaintiff.

This petition in error is brought to reverse the judgment of the •district court.

It will be seen that the error alleged is, that the court admitted testimony to prove that the court began its session at an hour later than that shown, by the record, as the one fixed by the judges of the district, upon the theory that the term began at the time the court was opened for the transaction of business.

No equitable considerations are involved in the determination of this case, for the lien of each party rests alone upon legislative enactment. The mortgage was “ delivered to the recorder” on the 9th day of May, at 11 o’clock a. m. ; and there is no dispute but that, under the statute, it took effect and held the land from that time. S. & C. Stat. 469.

It is equally clear, under the statute, that, inasmuch as that was the “ first day of the term at which the judgment was rendered,” the land was “ bound for the satisfaction thereof” on the same day. S. & C. Stat. 1064; Follett v. Hall, 16 Ohio, 111.

Here arises the real question in the case: At what time in the day did the judgment lien attach ?

There would be little difficulty in answering this question, but for the holding, in the case of Follett v. Hall, that a “mortgage handed in for record on the first day of the term of court, but before the court actually convenes, will prevail against the lien of a judgment recovered at the same term.”

While we are not, at this time, disposed to question the correctness of the decision of that case, we think, to say the least, that this ease is so clearly distinguishable from that, that it can not be regarded as an authority conclusive of the case before us.

In that case, the legislature had declared on what day of the month the court of common pleas should be held, and nothing more. 1 Curwen’s Stat. 762.

*In this case, the court was held pursuant to an act passed April 12, 1858. 4 Curwen’s Stat. 3089. By that act it was made the duty of the judges of the Supremo Court “to fix and prescribe the times for holding the terms of the district courts for the next succeeding yéar.” It was made “the duty of the judges of the common pleas, in each and every common pleas district in the state, to fix the times for the terms of the court of common pleas in each of the counties in their respective districts.” It is further made the duty of the judges of-the common pleas to “issue their written order to the clerk of the court of common pleas of each and every county in their district, specifying precisely the commencement of the term of the district court, and of the several terms of the court of common pleas in said county, and in all the counties in said district.” It is also made the duty of the clerk to enter this order “upon the journal of the court©f common pleas, and also upon the journal of the district court in his said county, . . . and said entries shall be full and sufficient evidence as to the legal terms for holding said courts as therein specified.” It is also further provided that the courts shall be held “ at the times fixed and ordered by the judges in accordance with the foregoing provisions.”

It is shown by the record, given in evidence by the plaintiff, that the judges fully performed the duty required of them by this act. They “fixed the times for the terms of the court of common pleas,” and issued their order “ specifying precisely the commencement of the term.” They specified both the day and the hour at which the term should begin.

Whether they were required to fix the hour of the commencement of the term or not, they, at least, had full authority to do so. Having in their order specified “precisely” the hour at which the term would commence, the statute provides that the record of that order “shall be full and sufficient evidence as to the legal terms for holding said courts as therein ordered,” and that the court shall be held “ at the times fixed and ordered by the judges.”

Giving effect to these provisions of the statute, we feel constrained to hold that, no matter at what hour the court convened, where a term of the court was held, “ the legal *term ” began “precisely” — in the language of the statute — “at the time fixed and ordered by the judges;” and that the record of this order was “ sufficient ” and conclusive “ evidence as to the legal term ” held pursuant to the order.

This construction of the statute is not only in accordance with the spirit and purpose of the act, but best harmonizes with other statutes that relate to the commencement of terms of the court.

Except as otherwise provided in special cases, judgments date as of the first day of the term, and become liens on lands upon that day, at whatever time in the term they may be rendered. There may be no session of the court on the first day of the term, by reason of the absence of the judge (when, by section 593 of the code, the sheriff is required to adjourn the court till the next day), still a judgment rendered on a subsequent day of the term, would become a lien on the judgment debtor’s land from the first day of the term, in virtue of the positive provisions of the statute. If, therefore, the lien attaches on the first day, when there is no .session of the court, a rule declaring the commencement of the lien to be at the opening of the court for business, must meet with embarrassing exceptions.

In such a case it would be difficult to determine at what time in the day the lien attached, unless it begins with the first moment that the term might by law begin, or, as in this case, where the time is fixed of record, in pursuance of a statute, “precisely” at the time specified in the record.

This construction renders the commencement of judgment liens fixed and certain, as we are warranted in presuming that the legislature intended they should be. Any other construction would give rise to great practical difficulties. The commencement of judgment liens would rest only in the uncertain memory of witnesses.

Eor obvious practical reasons, it is the undoubted policy of the law to render the commencement of all legal liens on lands definite and certain.

We think that the law, and the record made in pursuance of the law, conclusively fixed the time when the lien of the plaintiff’s judgment attached; and that was at the commencement *of the legal term of the court, on the 9th of May, at 10 o’clock a. m.

It follows, that the district court erred in overruling the objection of the plaintiff to the evidence offered by the defendant, to prove that the court of common pleas opened at a later hour, and in holding that the lien of the judgment did not attach to the land until the court opened for business' on the 9th of May.

The judgment of the district court is reversed, and the cause remanded for further proceedings.

White, Welch, Brinkerhoee, and Scott, JJ., concurred.  