
    Jacks et al. v. Adamson.
    
      Nunc pro tunc order — Exercise of power of court to grant — Evidence required to justify order.
    
    The power of a court of record to enter nunc pro tunc the evidence of judicial action previously taken, should be exercised only upon evidence which shows clearly and convincingly that such former action was in fact taken, but this rule as to the effect of the evidence does not change the general rules as to its competency; and the oral testimony of witnesses having personal knowledge of such fact is admissible. (Heirs of Ludlow v. Johnston, 3 Ohio, 53, distinguished.)
    (Decided May 11, 1897.)
    Error to the Circuit Court of Lawrence county.
    On November 13, 1865, John Adams, as administrator of the estate of Quincy Wilson, deceased, filed his petition in the probate court of Lawrence county, for an order for the sale of land of which Wilson was seized at the time of the death, alleging the insufficiency of his personal estate to pay debts and the costs of administration, and the necessity for the sale of said lands for that purpose.
    S'uch proceedings were had that the lands were sold and conveyed to Samuel Russell, whose title is now vested in Mrs. Jacks. The records in the probate .court show that all the proceedings were regular except that they show no order of the court confirming the sale which the court had ordered and the administrator had made and reported.
    In 1893, Mrs. Jacks, to defend her title against Mary Adamson, the heiress-at-law of Quincy Wilson, relied upon the record of these proceedings and the deeds following them. She and the administrator then joined in a motion for an order of confirmation nunc pro tunc, alleging that such order had been in fact made after the administrator had reported the sale and before the execution of his deed to Russell, and that it was by mere neglect that the order so made had not been entered on the journal.
    On the hearing of this motion in the probate court, the proceedings and deeds referred to were offered, including the cost bill in the case, showing that the probate judge had made a charge for confirming the sale, 'and the oral testimony of the administrator, and O. B. Edgerton, who was the probate judge at the time of the sale. The oral testimony showed that the order of confirmation had been in fact made, and the probate judge had himself written the deed from, the administrator to Russell, reciting therein that a sale to him had been made and reported by the administrator and confirmed by the court.
    The parol evidence was admitted over the objection of counsel for Mrs. Adamson.
    The probate court found that the order of confirmation had in fact been made, and accordingly sustained the motion to enter it nunc pro tunc.
    
    In the court of common pleas the judgment of the probate court was affirmed.
    In the circuit court the judgments of the common pleas and probate courts were reversed because of the admission of said parol evidence.
    
      A. B. Johnson, for plaintiffs in error.
    Every court is a judge of its own records, and it is for that court to say whether or not a certain order has been made, and if it appears satisfactory to that court, no other court on error will interfere unless for fraud. Benedict v. State, 44 Ohio St., 684'; Cincinnati Hotel Company v. Central Trust ancl Safe Deposit Company, 25 Law Bui., 375.
    The failure of the clerk of the court to enter the decree of confirmation on the minutes of the court is not fatal to the purchaser’s title, where it appears that such decree, in fact, was ordered by the court. Freeman on Void Judicial Sales, section 43.
    The court may enter a nunc pro tunc entry upon any competent legal evidence, and the court passing upon it is the proper judge as to the amount and kind of evidence requisite in the particular case to satisfy such court what was the real order of the court, or the actual proceeding before it, and what was the proper entry to be made on the docket, and how the record should be extended. Frink v. Frink, 80 Am. Dec., 191.
    Such an entry may be founded exclusively upon parol testimony. Dial v. Hotter, 6 Ohio St., 246; Freeman on Judgments, Yol. 1, section 63; Black on Judgments, section 135.
    
      Julius L. Anderson, for defendant in error.
    One of the chief items of evidence upon which the probate court entered the nunc pro tunc order was that the cost bill showing charges for confirmation, shows, also, charge for two continuances.
    This fixes its date before August 31st, 1866, as on that date, the continuance was the third one.
    It is evident it was not made out after August 31st, 1866. Hence, so far as it could be evidence in the case, it is against the confirmation; for after it was filed, the Journal shows that the case, was continued for confirmation and other things. This bil-1 is not competent evidence to contradict the Journal.
    
      The deed of the administrator to Russell is not competent to show a confirmation.
    It is not a record in the case, nor a quasi-record, required by law to be kept by the court, such as the journal and docket, but simply refers to a confirmation, made August 31st, 1866, and is, as to'this fact directly negatived by Journal entry of that date.
    . Nor would the Tickler of Judge Edgerton, if it could be found, be competent to contradict or correct, or change the Journal, for it was not a book required by law to be kept. The presumption is that it would agree with the Journal.
    The Journal and complete record show that the sale was not confirmed August 31st, 1866.
    Neither Judge Edgerton, nor Deputy Judge Golden, remembers of any order of confirmation at any time. There is no recollection of judge of a confirmation, no docket entry — no record evidence of any kind- — and in Ohio it is not competent to prove a record and enter it nunc pro tuno on parol evidence alone.
    
      The Glevelai'bd Leader Printing Company v. Green, 52 Ohio St., 487. .
    The first two cases referred to in note 43, to section 135,' Black on Judgments, do not sustain the text, but sustain the view above expressed.
    Besides the lapse of ■ time (more than 26 years) under the circumstances, makes against the exercise of the power to enter a mono pro tuno order. Code Revised Stat., section 5363.
    The entry of August 31st, 1886, shows continuance to day in- December for confirmation.
    This entry is in full force — is not set as-ide.
    
      LLudson v.- Hudson, 56 Am. Dec., 200.
   Shauck, J.

It is said that the learned judges-of the circuit court were of the opinion that the judgment of reversal rendered in this ease was. required by the decision of this- court in Heirs of Ludlow v. Johnston, 3 Ohio, 553.

That ease was reported at great length, and it. has been misunderstood frequently. An analysis-of the case shows that it was not a proceeding in. the court of common pleas, acting as a court of probate, to enter upon its record the evidence of an order which it had in fact made at a former term. It was an action of ejectment. The plaintiffs claimed as heirs-at-law of Israel Ludlow who had died intestate, seized of the lands in controversy. The defendants relied upon the record of a former proceeding instituted by the administrators of Ludlow for the sale of lands to satisfy his debts, and upon a conveyance executed by said administrators pursuant to authority supposed to have been conferred upon them by the court in-such former proceeding. The proceeding by the administrators had been instituted under an act-which was repealed by an act which took effect June 1, 1805. To this defense the validity of an order of sale made at the August term 1805, after the repeal of the statute which authorized the court to order the sale, was indispensable. The entry of the August term did not find that an order for-the sale of the lands in controversy had in fact been made at the May term, 1805, or at any other-time before the repeal of the act under which the proceeding was taken. The court entered an. order first made in August, and attempted to give-it effect before the repeal of the statute by adding: “This order to be considered of Ma-y term.” When this record, including the August entry, was offered by the defendant in the ejectment case, it did not show that any order of sale had been made prior to the repeal of the statute which authorized it. The defendant then attempted to supply this defect by parol evidence, showing what the record as ' amended did not show, viz: that the sale which was made had been ordered in May. It was for this purpose that evidence of that character was held to be incompetent. That case, therefore, contains no warrant for the eighth proposition of the reporter’s syllabus, nor for the judgment of the circuit court in this case:

The inherent power of courts of record to correct their records in furtherance of justice is of ancient exercise. It is admitted that the power exists, and that it is restricted to placing upon the record evidence of judicial action which has been actually taken —that it can be exercised only to supply omissions in the exercise of functions that are clerical merely.

But concerning the evidence upon which it may be found that the suggested judicial action was previously taken, the cases are quite discordant. The diverse conclusions that the fact of such former action can be found only from the records; that it may be found from the records aided by the judge’s recollection, and such memoranda as there may be and by the files; that parol evidence is in no case admissible; that parol evidence may be taken to settle the terms of a judgment, but not the fact that a judgment was rendered; and that the facts and terms of the judgment may be found upon any evidence by which they are clearly and satisfactorily established, all find support in the decisions of courts of last resort.

If the fact that the judgment was pronounced, or an order made, is to be inferred alone from the record as it exists, the inference might as well be drawn by the court in which the record is relied upon as by that in which it was made. It is not easy to see why the recollection of the judge as to the making of an order is more reliable when he continues in office and orders the nunc pro tunc entry, than when, as in this case, his official term having expired, he gives oral testimony before his successor upon the same subject. No reason is apparent why a memorandum which an officer may happen to make, but which he is not required to make, should, upon a question of competency, be regarded as entitled to especial consideration. Nor is it practicable to distinguish between the evidence offered to show the fact, conclusive of nothing, that a judgment was rendered, and that offered to show the terms that are essential to its efficacy.

In proceedings of this character whether the order had been made is a question of fact. It seems more consonant with the purpose for which the power of making entries nunc pro tunc is exercised, and with the reasons involved, that in determining that . question of fact, the court should resort to all sources of information that are competent under the general rules, including the oral testimony of witnesses who have personal knowledge upon the subject. The proceeding presupposes the absence „of a record upon the subject, and the court should receive the best evidence of which the ease admits. This view of the subject has been taken in numerous cases, including Brownlee v. The Commr's., 101 Ind., 401; Rugg v. Parker, 7 Gray., 173; Frink v. Frink, 43 N. H., 508; Weed v. Weed, 25 Conn., 337 ; Bobo v. The State, 40 Ark., 224. In Hollister Smith v. The Judges, 8 Ohio St., 201, it was applied by this court to the correction of a bill of exceptions which was also a part of a judicial record.

The reported eases generally recognize the impropriety of exercising the power in question, unless it is clearly shown that the supposed judicial action was formerly taken. In various forms it is declared that to establish that fact there should be such convincing evidence as to exclude all conjecture. That view has been taken by this court whenever the subject has been adverted to, and it is reaffirmed now. The record before us shows, however, that in this regard due caution was observed by the -probate court. It does not appear that, -as to the effect of the evidence, a different view was taken in the circuit court.

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