Summary
In National Life Ins. Co. v. Kohn, supra, paragraph three of the syllabus, the Supreme Court ruled that when a court exceeds its power in entering a purported nunc pro tunc order, that order is invalid.
Summary of this case from State v. BreedloveOpinion
No. 26479
Decided December 22, 1937.
Nunc pro tunc entries — Inherent common-law power — Limited to subsequent recording of previous action — Exceeding power invalidates entry.
1. Courts possess inherent common-law power to enter nunc pro tunc judgments or orders in proper cases.
2. The power to enter such judgments or orders is restricted ordinarily to the subsequent recording of judicial action previously and actually taken.
3. When a court exceeds its power in entering a purported nunc pro tunc judgment or order, such judgment or order is invalid.
APPEAL from the Court of Appeals of Cuyahoga county.
This mortgage foreclosure action was filed in the Court of Common Pleas October 18, 1933. In conformity with the prayer of the petition that court appointed a receiver who managed the mortgaged mercantile and apartment building during the pendency of the suit.
The material chronology of the case is as follows:
January 24, 1936, the decree of foreclosure was entered.
March 23, 1936, the property was sold.
March 30, 1936, the sale was confirmed, a deed was ordered executed and delivered, and a writ of possession was ordered to issue to the purchaser.
April 29, 1936, the receiver's final report was filed.
May 2, 1936, the receiver's final report was approved, and the balance of $74.21 having been paid by the receiver to the clerk, the receiver was discharged and his bond was released.
May 4, 1936, a new term of court began.
May 5, 1936, the order of sale was returned by the sheriff to the clerk.
June 16, 1936, Kirby H. Sommers and his wife Frances filed a motion asking leave to file an intervening petition and make the receiver a party defendant in separate suits for the recovery of damages claimed to have been sustained December 22, 1935, when Mrs. Sommers was struck by heavy plaster that fell from the ceiling in a suite occupied by Mr. and Mrs. Sommers in the mortgaged apartment building.
July 11, 1936, the court made the following entry:
"This cause having come on to be heard this second day of July, 1936, on the application and motion of applicants for leave to sue receiver and to file intervening petitions in the aforesaid action, upon the evidence and said motion the Court finds that the applicants do have a cause of action and are entitled to file an intervening petition in this case and a right to sue the receiver in a separate action for damages.
"It is, therefore, ordered, adjudged and decreed that leave is hereby granted to said applicants to file a separate action against the said receiver and to file an intervening petition in the case at bar and said leave is hereby granted as of the thirty-first day of March, 1936."
Upon appeal to the Court of Appeals on questions of law the judgment of the Court of Common Pleas was affirmed. In addition to announcing the affirmance the journal entry of the Court of Appeals contains the statement that "Lieghley, Judge, dissents for the reason that the trial court after term is without authority to allow intervention and make new parties defendant to assert claims in tort against the receiver in a foreclosure action after decree, sale, delivery of deed, distribution, discharge of receiver and release of his bond."
The case is in this court by reason of the allowance of a motion to certify.
Messrs. Treadway Marlatt and Mr. George B. Folk, for appellant.
Mr. A.L. Kearns, for appellees.
The one question requiring the consideration of this court is whether the Court of Common Pleas was within its powers in making the nunc pro tunc entry of July 11, 1936.
It is elementary that courts possess inherent common-law power to enter judgments or orders nunc pro tunc in proper cases. The phrase meaning simply "now for then" is accurately descriptive. The general purpose of such an entry is to record a prior but unrecorded act of the court. In other words, the power to make nunc pro tunc entries is restricted ordinarily to the subsequent recording of judicial action previously and actually taken. It is a simple device by which a court may make its journal speak the truth. Reinbolt v. Reinbolt, 112 Ohio St. 526, 147 N.E. 808.
Under the circumstances of the instant case did the court possess the power to resort to a nunc pro tunc entry? Patently the answer must be in the negative. It should be remembered that the entry was made on July 11, 1936, and according to its terms it purported to be retroactively effective as of March 31, 1936. The purpose of this retroactive feature could not have been to make the journal speak the truth, because the intervenors did not file their motion until June 16, 1936. Furthermore it is not claimed that the court took any action whatsoever in this case on March 31, 1936. Thus it is apparent that the court exceeded its power, and that its pretended entry was invalid.
Had the entry been effective as of the date of its actual rendition, another question would be presented for consideration. However, that matter is not now before the court inasmuch as there was no attempt on July 11, 1936, to vacate or modify any former entry in the case.
The judgment of the Court of Appeals is reversed and final judgment is rendered for the appellant as to the entry of July 11, 1936.
Judgment reversed.
MATTHIAS, DAY, ZIMMERMAN and MYERS, JJ., concur.
WILLIAMS, J., not participating.
A nunc pro tunc order even if improperly entered can still be considered as of the date it was actually entered. It therefore is not invalid in its entirety. It is equally well settled that before leave to sue a receiver may be obtained the entry of discharge must first be set aside. Such an order can be set aside upon proper showing even after term. Because appellees failed to take such action I concur in the judgment.