
    FAILURE TO ENTER THE OVERRULING OF A MOTION FOR NEW TRIAL.
    [Circuit Court of Lucas County.]
    The State of Ohio, ex rel Samuel H. Mohler, v. Reynolds R. Kinkade.
    Decided, October 31, 1903.
    
      Mandamus — Does not Lie to Compel the Making of an Entry, When— Nunc Pro Tunc Entries and their Office.
    
    1. While it is possible that a judge of the common pleas might, after the term, upon a proper presentation of the facts, 'set aside a former motion for a new trial and re-hear the case, it would be beyond his power to order an entry made as of the September Term of the overruling of a motion for a new trial on June 29th preceding.
    2. The omission to make at the time an entry of the overruling of a motion for a new trial can not be cured by a nunc pro tunc entry made tbe following term, when all the parties were present at the time of the overruling of the motion and had full knowledge of what was done.
    Haynes, J.; Hull, J., and Parker, J., concur.
   This is a petition in mandamus filed by the relator, the object and prayer of which is to compel a judge of the court of common pleas to enter the overruling of a motion for a new trial in a certaim ease as of the September Term, 1903, of that court.

The fact's of the case are these: Mohler had sued The G-rasser & Brand Brewing Company; the case came on for trial and a verdict was directed by the judge of the court in favor of the defendant, this occurring in May, 1903; and thereupon the plaintiff filed a motio-n for a' new trial. The motion came on to he heard on the 29th of June of that year, was argued by counsel and overruled by the court. The matter seems to have rested there until somebody waked up later in the season, along in September, and got an impression that they ought to file a bill of exceptions so that they could file a petition in error, and they found then that no entry had been placed upon the journal of the overruling of the motion for a new trial. Thereupon, on the 4th of September, 1903, there was a journal entry tendered by Mahler’s counsel to the clerk of the court of common pleas, which purported to he the overruling of the motion for a new trial on the last day of the previous term, that term having adjourned ou the 28th day of July, 1903. The clerk refused to make the entry. Thereupon a motion was filed by the plaintiff for an order nunc pro tunc for the entering of the overruling of tire motion for a new ■trial as of the 29th day of June, the date that it was overruled. For some reason this was overruled by the court. The petition for mandamus avers that there never has been any judgment entered in the case, 'and there the matter stands, so far as the journal in the court of common pleas is concerned. Incidentally, I should say that the court had, on the 8th 'day of September, 1903, made an entry on his docket, but he afterwards erased it for the reason that it had been made by the judge himself after the term, and so improperly made at that' time. Defendant’s counsel filed a bill of exceptions on the 4th of September, 1903, with the clerk, and that matter was brought up before the judge and he refused to sign the bill of exceptions.

Now, as a way out' of the difficulty, 'a petition in mandamus is filed to have the entry overruling motion for new trial made as of the September Term, which commenced on the 15th of September, to let the bill of exceptions be signed and filed. It appears from the record that counsel for both parties were present when the motion for a new trial was overruled and-the court made its decision, and the court was there and the clerk of the court, by his deputy. It will be -observed that no step was taken by any party from that time afterwards until more than sixty days had elapsed from the time of the overruling of t'he motion, when activity was commenced. The reason assigned by the clerk for not receiving the journal entry that was furnished by the defendant’s counsel was, that there was no memorandum on the docket of the court of common pleas. That book is known as t'he “Motion Docket” by us, but it is not known to the statute; a “Trial Docket” is provided for by -the statute and that is the one that is kept by the court. It has been determined more than once by the Supreme Court of this state that a memorandum made by the judge upon that docket is merely a memorandum for his owm information. The motion was overruled on the 29th,' in open court', and 'that was the act of the court. It was the duty -of the clerk under the statute to record the acts of the court in the journal of t'he court. No time is stated when it should be done, but it is ordered to be done and it is to be done according to the truth of the case. This entry should have been made, and should have been made on the 29th day of June; that was the truth of the case. The defendants had a right, immediately upon the overruling of the motion, if they wished to take the case to a higher court, to take steps and file a bill of exceptions. They had forty days in which to do that; and if they desired the journal entry to be made so that the record could go up with the journals all complete, they could have called the attention of the court to it and had the entry made. "We know of no reason, and may I say that we see no right for the court of common pleas to make an entry in September overruling the motion for a new trial. It is possible that after the term he might, upon a proper statement of fact's, set aside the former motion and re-bear the case; but to simply set aside and re-enter it, I think would be beyond the proper exercise of his power. The party in whose favor the motion was overruled has his rights in the matter, and he had a right to have the entry made as of the ¿date at which the overruling was made, and his right is fixed as that of time. The Statute, Section 5301, passed October 22d, 1902, provides that the party excepting must reduce his exceptions to writing and file the same within forty days after the overruling of the motion for a new trial. He had his forty days within which to do that and it was his duty to take steps to do that within that time if he desired to take the case further.

With this statement of the facts and of the law of the ease, as we understand it, we think this application for a mandamus should be overruled.. The party has had his day in which to file his bill of exceptions and that time has passed. He has not been misled by any person or by any party. He was present in open court and heard the ruling of the court', and he was bound to act upon that ruling if he desired to take exceptions to the overruling and the 'action of the court, or have a hearing upon that in another court. It is argued that a nunc pro tunc order should not' be allowed as of the 29th day of June as it would work a hardship and an injury to the other party. It is true that that rule is kid down in regard to nunc pro tunc orders, but at the same time the power to enter such order's is well and definitely fixed and is exercised often many years after the time that the action was taken by the court. There was a hard-fought case from this county where there had been a motion overruled' and failure to enter a judgment, and an application was made more than seven years after, and the entry was made and was sustained by the courts. The rule, so far as this case is concerned, has ho application whatever, because the parties were present and had full knowledge of what' was done by the court and were bound to act upon the knowledge that they possessed at that time and defend their rights.

Joseph B. W. Cooper -and Franlc G. Crane, for relator.

Doyle & Lewis, for defendant.

For these reasons the application for a writ of mandamus will bo denied and refused at the costs of the relator.  