IMPRISONMENT AS A PENALTY FOR FAILURE TO PAY FINE AND COSTS.

Court of Appeals for Darke County.

#### Percy Witters v. Lynn Browne, Sheriff of Darke County.

Decided, January 7, 1918.

*Sentence*— Suspension *of*— Remedy *in Case of Refusal to Pass on Motion for a New Trial*— Delay *in Enforcing Sentence Not a Bar to Its Execution, When.*

1. The effect of the overruling of an application for a *nunc pro tunc*entry suspending sentence is to adjudicate conclusively that no order of suspension was ever made. The remedy is a proceeding in error, or in the event of the court refusing to pass on the motion for a new trial the remedy is to compel action by a writ of mandamus.

2. Where no fixed term of imprisonment is named, and it is provided only as a means of enforcing collection of a fine and costs, delay in its enforcement does not prevent the issuing of a writ of execution.

*John Maher,*for plaintiff in error.

*George F. Crawford,*contra.

Kunkle, J.

This .action was brought by plaintiff in error to enjoin defendant in error, as sheriff of Darke county, Ohio, from proceeding under an execution issued by the Probate Court of Darke County in a criminal action wherein plaintiff in error was adjudged to pay a certain fine and costs.

Plaintiff in error claims that the probate court, at the time the sentence was imposed, ordered the same suspended but neglected to enter the same of record.

It further appears from the petition that a motion to enter such order of suspension *mino pro tunc*was overruled and that a motion for a new trial was filed within three days after such refusal and is still pending.

*238A demurrer was filed and sustained to the petition, and the plaintiff not desiring to amend a final judgment was entered dismissing the petition. From said judgment plaintiff in error prosecutes error to this court.

The only question for consideration relates to the sufficiency of the petition.

Two questions were presented:

1. As to the alleged suspension of the sentence.

2. As to the delay in the enforcement of the sentence.

As to the first proposition, it is conceded that an application was made to the probate court to enter such order of suspension *nunc pro tunc,*and that such application was refused. The effect of such refusal was to adjudicate conclusively that no such order of suspension was made.

If such adjudication was erroneous, the remedy of plaintiff in error was to prosecute error therefrom. Such adjudication can not be impeached collaterally. The filing of the motion for a new trial and the failure of the court to pass upon the same does not operate to annul the finding and judgment upon the application for a *nunc pro tunc*order.

Plaintiff’s remedy in case the probate court refused to pass upon such motion for a new trial was to compel action thereon by a writ of mandamus.

We have carefully examined the authorities presented as to the second proposition and are of opinion that in Ohio the mere failure to issue an execution upon the judgment in question, under the circumstances set forth in the petition, is not a bar to an execution issued thereon and now in the hands of defendant in error as sheriff.

Considerable stress is laid upon the decision of Judge Houck of the Fifth District in a recent decision. We have carefully considered this decision and are of opinion that the case at bar is clearly distinguishable from the one decided by the Fifth Appellate District.

The ease decided by Judge Houck involved a sentence of imprisonment for a fixed term, and that court merely held that under Section 13714, General Code, thé trial court could not revoke *239a suspended sentence and proceed to execute the sentence after the expiration of the longest period for which the defendant might have been sentenced. The case at bar contains no fixed sentence of imprisonment, but merely provides for imprisonment as a means of enforcing the collection of the fine and costs, and there is no special statute limiting the time for executing the sentence under consideration.

The demurrer having been properly sustained, the judgment should be affirmed.

Execution of sentence may be suspended for thirty days if counsel desire to secure the judgment of the Supreme Court upon this case.

Allread, J., and Ferneding, J., concur.