
    The State, ex rel. Phillips et al., v. The Industrial Commission of Ohio.
    
      Workmen’s compensation — Attorney’s fee on appeal to common pleas court — Section H65-90, General Code — Fees cannot be allowed after judgment affirmed by supreme court — Action not pending in common pleas court after judgment therein — Fixing fee not in nature of nunc pro tunc, when.
    
    (No. 20164
    Decided March 22, 1927.)
    In Mandamus.
    This is an original action in this court in which the relators seek a writ of mandamus. The relators in their amended petition state that they were attorneys for one Joe Phillips in a certain action wherein he appealed to the court of common pleas from an order of the Industrial Commission of the state denying him compensation fo** an injury which he claimed to have sustained as an employee of the Hydraulic Steel Company, a contributor to the workmen’s compensation fund; that as a result of the trial in the court of common pleas a verdict was returned and a judgment awarded in favor of said Joe Phillips, which was affirmed by the Court of Appeals, and later by the Supreme Court (114 Ohio St., 607, 151 N. E., 769), which was on April 13, 1926. The relators aver that they represented said Joe Phillips throughout said proceedings as his attorneys; that on May 10, 1926, they filed in the court of common pleas of Cuyahoga county a motion to tax costs and fix the fees of relators as such attorneys, and thereafter upon hearing in which the prosecuting attorney of Cuyahoga county appeared for the respondent, said motion was allowed and $4,000 was fixed by said court as the fee to which relators were entitled, and judgment was entered in favor of relators in that amount; that no motion for rehearing or new trial was filed or any proceeding instituted to vacate or modify said judgment; and that the respondent has refused and still refuses to pay the amount so awarded to the relators. A writ of mandamus is prayed for, commanding the respondent to issue and deliver to the relators proper voucher or order for the payment of said sum by the treasurer of state.
    The respondent filed an answer, consisting of two defenses; the first being a general denial. In the second, after reciting the facts relative to the trial of the action wherein the relators were attorneys for said Joe Phillips, it is averred that upon the affirmance of the judgment in his favor by the Supreme Court the cause was remanded to the court of common pleas for the collection of said judgment, and for no other purpose. It is averred that thereafter the court of common pleas of Cuyahoga county had no further function to perform in such case, and that said judgment has been paid in full according to the terms of the judgment, including the costs. It is averred that all this was done many months previous to June 24, 1926, and that at the time the journal entry was spread upon the journal the court of common pleas had exhausted its power in that case, and there was nothing pending before the court, and the Industrial Commission was not brought into the court, and the court had no jurisdiction over the parties at the time the last entry was spread upon the journal of the court of common pleas. It is further alleged that the amount of attorney fees being sought is exorbitant, and in excess of a reasonable fee, which the' respondent is willing to pay the relators.
    A reply denies the allegations of the defense which do not admit the averments of the relators’ petition.
    
      Mr. M. G. Harrison, for relators.
    
      Mr. G. G. Grabbe and Mr. Edward G. Turner, attorneys general, and Mr. B. B. Zurmehly, for respondent.
   By the Court.

Upon the undisputed facts presented by the pleadings a peremptory writ of mandamus cannot be awarded the relators. Under the provisions of Section 1465-90, General Code, authority is conferred to tax against the unsuccessful party the costs of any legal proceeding authorized by that section, including the attorney’s fee for the claimant’s attorney, to be fixed by the trial judge; however, it here appears that no question of the allowance of an. attorney’s fee or the taxing of same as a part of the costs was raised or presented in the trial court, and no action whatever taken with reference thereto, until after the judgment in favor of Phillips had been affirmed by the Court of Appeals and the Supreme Court and the cause remanded to the court of common pleas for execution. The costs which were taxed became a part of the judgment which was submitted to, and affirmed by, the Court of Appeals and the Supreme Court, and that judgment has been paid.

This proceeding in mandamus is based upon subsequent action of the trial court after affirmance of the judgment in the Supreme Court, and upon hearing the trial court rendered a further judgment for attorney fees in favor of the plaintiff. No action was then pending in that court. The suit had terminated in final judgment, which, upon proceedings in error, was affirmed and remanded to the trial court for execution. The trial court had no further authority in the matter and certainly could not render an additional judgment for attorney fees, or medical expenses, or any other item which under the law could have been considered in the making of an award and the rendition of judgment thereon. The action taken by the trial court was not in the nature of a nunc pro tunc entry. It was not a case of mere clerical error, or an omission to put in the record and enter on the journal action which had in fact been taken by the court; no such action had been taken; hence, this case does not come within the rule under which a nunc pro tunc entry may be made to supply some omission in the entry of what had been done at a preceding term. Hickman v. Fort Scott, 141 U. S., 415, 12 S. Ct., 9, 35 L. Ed., 775, and In re Wight, 134 U. S., 136, 10 S. Ct., 487, 33 L. Ed., 865. Here the court was without power to go further than to require the entry of that which had been done, but had been omitted from the record. The court being without authority to render an additional judgment, there was nothing upon which to base the proceeding in mandamus.

Writ denied.

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

Robinson, J., dissents.  