
    
      In re Estate of Jarrett.
    Where a party to an action dies after trial and submission to the court, but before a decision is announced, tire court has jurisdiction, and, in • furtherance of justice, may enter judgment nunc pro tuna as of the day of submission.
    Motion for leave to file a petition in error to the District Court of Belmont county.
    Jolm McKisson was tlie executor of the estate of Isaac Jarrett. His first settlement of account was passed upon by tlie probate judge July 26, 1867; and bis second settlement account was passed upon February 1, 1878.
    On July 29, 1879, tlie lieirs-at-law of Isaac Jarrett filed a motion in the probate court to open up, examine and correct both of the settlement accounts, for the reason that, in both the executor had fraudulently omitted to charge himself with the proceeds of 6721 pounds of tobacco -purchased from the testator, in his lifetime, b}7 one Charles R. Wilson at the price of $11.25 per hundred pounds, and paid for by Wilson to the executor about April 1, 1866.
    Testimony showed that Wilson had paid about $200, on the claim to the testator in his lifetime.
    Oh September 11, 1879, the executor made a motion to quash the proceedings, which motion the probate court overruled ; and on November 10,1879, the court, after hearing testimony and arguments of counsel, corrected the errors in the accounts and held the executor to account for $539.10, the price of the tobacco not accounted for by him in the former accounts, and the court rendered judgment against the executor individually for the costs of the proceeding. Appeal was taken to the court of common pleas.
    After full hearing in the court of common pleas the matter was submitted to the court April 13,1881, and while said executor, John McKisson, was in full life. The court reserved the matter for determination, and before final decision, and while the court so held the same under advisement, the executor, McKisson, died; and on Arpil 20, 1881, during the same term of court, when the court came to decide the case, it was announced in open court that John McKisson was dead, and upon that suggestion the court deferred entering judgment. At the next term of court, the court upon its finding rendered judgment, as of the day of submission, nunc pro tunc, against the executor, correcting the error in the accounts and charging the executor personally with the costs of proceeding. There were proceedings in error in the district court of Belmont county, where the judgment was affirmed. Now the administrator of John McKisson asks leave to file a petition in error in this court to reverse the judgments below.
    
      L. Danford and O. W. Gonnell, for McKisson.
    
      J. W. Shannon, for Jarrett’s estate.
   Follett, J.

The only question presented is, whether or not the court of common pleas erred in entering judgment after the death of John McKisson, nunc pro tuno, as of the day when the cause was submitted and he was alive.

It is well established, that to prevent injustice and to promote justice, judgments may be entered nunc pro tunc. This power has been exercised by courts from the earliest times. Mayor of Norwich v. Berry, 4 Burr. 2277; Tooker v. Duke of Beaufort, 1 Burr. 146; Freeman on Judgments, § 56, and cases cited.

In Dial v. Hotter, 6 Ohio St. 228, this court said: “ Where a defendant in an action for libel and slander, after the finding of a verdict against him in the court of common pleas, files, during the same term, and in compliance with the rules of the court, motions for a new trial and in arrest of judgment, and afterward dies, and the motions are continued to another term for hearing, the court may, if such motions be overruled, enter a judgment nuno pro tunc upon the verdict, as of the term in which it was found.”

In this case the parties had done all they could, the case was fully heard and submitted to the court and should abide _ the decision of the court.

In Perry v. Wilson, 7 Mass. 393-395, the court say : “ Where an action is delayed for the convenience of the court, they will take care that no party suffers by such delay.” Therefore, where, after a continuance by order of the court for advisement, the defendant in the action died, judgment was entered as of a former term.

This position is supported by numerous decisions. Bank U. S. v. Weiseger, 2 Pet. 481; Clay v. Smith, 3 Pet. 411; Griswold v. Hill, 1 Paine 484; Gray v. Prignardello, 1 Wall. 636; Campbell v. Mesier, 4 Johns. Ch. 342; Freeman on Judg. § 57.

In Turner v. London and South Western Ry. Co., 17 Law Rep. Eq. Cas. 561, 565, Sir Charles Hall, V. C., examines Collins v. Lister, 20 Beav. 355, and Troup v. Troup, 16 W. R. 573, and states the law to be, that, “ Where a plaintiff dies after hearing but before judgment, the court has jurisdiction to date the judgment as of the date of the hearing.” And in Chitty’s Archbold’s Practice, Queen’s Bench (12 Ed. p. 1572), the rule at law is stated thus: “ The court will in general permit a judgment to be entered nune pro tuno, where the signing of it has been delayed by the act of the court. Therefore, if a party die after a special verdict, or after a special case has been stated for the opinion of the court, or after a motion in arrest of judgment, or for a new trial, or after a demurrer set down for argument, and pending the time taken for judgment, or whilst, the court are considering their judgment, the court will allow judgment to be entered up after the death nuno pro tunc, in order that a party may not be prejudiced by a delay arising from the act of the court.”

We think the action of the courts below is sustained by reason, and the great weight of authority, and the motion is overruled and the judgment is affirmed.

Judgment accordingly.  