NUNC PRO TUNC ENTRY CAN NOT SUPPLY PLACE OF ONE NEVER MADE OR ORDERED MADE.

Court of Appeals for Hamilton County.

#### Catherine Reynolds v. George J. Reynolds.

Decided, November 3, 1919.

*Service of notice of Hearing of Motion and Return Thereon*— When *Authority of Attorney to Bind Client Ends*— necessity *of Action of a Court being Indicated by the Record.*

1. When notice of the hearing of a motion is required the form, substance, service and return of service on such notice are prescribed in Sections 11372 and 11374 of the General Code. Compliance with the provisions of these sections is necessary to give the court jurisdiction to bind the parties to the action.

2. The authority of an attorney of record employed in a divorce case to act for, receive service of notice and to bind his client, ends on the entering of judgment. That part of the judgment awarding the custody of minor children and fixing periodical payments for their support until the further order of court does not change the rule as to the ending of the attorney’s employment.

3. When a court must act itself and act directly, that act must be evidenced by the record. After the term, a court may not, by an order entered *nunc pro tunc,*enter of record an order that it might have made or intended to make, but which in fact was not made, attempted or directed to be made.

W. *F. Fox,*for plaintiff in error.

*Frank & Franks,*contra.

Cushing, J.

This cause is heard on error. The facts are:

.October 21, 1916, Catherine Reynolds filed an action for divorce against George J. Reynolds. October 30, 1916, Reynolds filed an answer and cross petition, had summons served and asked for divorce from Catherine Reynolds. April 23, 1917, a divorce was' granted George J. Reynolds. The custody of the minor children was given to Mrs, Reynolds, He was *130ordered, to pay $10 a week for their support. November 20, 1918, a motion was made to modify that order. December 2, 1918, the following entry was made:

> “This cause coming on the 30th day of November, 1918, to be heard on the motion filed herein by defendant on the 20th day of November, 1918, to modify and discontinue the payment of money for the maintenance of the minor children of the parties hereto, for the reason that said children are now self-supporting and are. not dependent upon defendant for their maintenance, and the evidence, and plaintiff’s attorney of record having been, notified a reasonable time before the hearing, to-wit: on the. 20th day of November, 1918, and in appearing in open court and in disclaiming authority, the court, on consideration thereof, does hereby grant said motion, and hereby orders, adjudges and decrees that payment of money for the maintenance of the minor children of the parties hereto be discontinued immediately, for the reason that said children are self-supporting and are not dependent upon defendant for their maintenance.”

December 31, 1918, the following order was made:

> ‘ ‘ This cause coming on to be heard on the motion filed herein by defendant on the 21st day of November, 1917, for an order to modify the original decree entered herein on the 23rd day of April, 1917, in so far as the maintenance of the minor children of defendant were concerned, and to reduce said amount from Ten ($10.00') Dollars per week to Three ($3.00) Dollars per week, and the evidence, the parties herein having been duly and legally served with notice of the filing of said motion and the date of the hearing thereof, and appearing in open court with counsel, the court, on consideration thereof, hereby modifies its original order of Ten ($10.00) Dollars per week, and hereby orders defendant to pay into this court for the maintenance of his said minor children the sum of Seven and 50/100 ($7.50) Dollars per week until further order of the court, and hereby makes this entry *nunc pro tunc*as of January 25th, 19.18, the date of the hearing of said motion and of the judgment and order of the court. To all of which plaintiff excepts.”

Two questions are presented by the record. First. The kind and service of notice on Catherine Reynolds as to the hearing of December 2, 1918. The entry recites that “plaintiff’s' at*131torney, of record, having been notified a reasonable time before the hearing, to-wit on the 20th day of November, 1918, etc.” The record does not disclose the form of notice or by whom served. The transcript of the docket and journal entries recites that the attorney disclaimed authority to represent Catherine Reynolds. Section 11372 provides that such notices must be in writing, contain the names of the'parties, the place where and the day on which it will be heard and the nature and terms of the order applied for. The notice required by the statute was not served.

The record shows and it is admitted in argument that there was no service on the plaintiff other than the notice given to William F. Fox, who had been her attorney in the original action, in which the judgment of April 23, 1917, was rendered. There is no presumption that the lawyer who had represented her up to the time of the judgment was authorized to receive summons for her at the time of the motion to modify the original decree and the subsequent notice. The authority of an attorney ordinarily ends with the rendition of a final judgment or decree. See 2-Mechera. on Agency (2 ed.), Sec. 2315; Weeks *on*Attorneys (2 ed.), Sec. 218; 3 A. & E. Encyl. of Law (2 ed.), 329; 4 Cye., 952.

In the ease at bar, after the judgment was rendered, the de¿ fendant was to pay the money into court and plaintiff’s attorney had no further duties to perform. Even apart from his disclaimer of authority to represent plaintiff, defendant was chargeable with knowledge that he was without authority to receive summons for her. *Kalmanowitz*v. *Kalmanowitz,*108 App. Div. N. Y., 296; *Conklin*v. *Conklin,*113 App. Div. N. Y., 743.

As the notice to the opposite party to vácate a judgment at a subsequent term is .jurisdictional, an order without notice to the other party is void.- The attorney for plaintiff could not bind her by an unauthorized appearance at a term subsequent to the rendition, of final judgment. *Owen*v. *Smith,*155 Ia., 463, 136 N. W., 114; *Scott*v. *Scott,*174 Ia., 740, 156 N. W., 834; and *Berthold v. Fox,*21 Minn., 51. See also *Nye*v. *Stillwell,*12 C. C., 40; 5 Circ. Dec., 35.

*132The power of an attorney to represent a party is fully executed by the accomplishment of its purpose when a judgment is obtained. The authority given by the appointment ends when nothing remains to be done in pursuance of it. The notice therefore served upon Mr. Fox did not constitute notice to plaintiff. The order based thereon was void.

January 25, 1918, the court heard a motion to modify its former order allowing $10.00 per week for the support of the minor children. On that day the court mailed counsel a memorandum that the amount would be $7.50 per week. The clerk was not directed under Section 1641, General Code, to enter the order on the journal, nor was the court’s memorandum filed with the clerk. There was no record made, directed or instructed to be made at that time, nor during that term of court.

December 31, 1918, after three terms of court had expired, an order *nunc pro tunc,*was made as of January 25, 1918. The question presented is: May a court enter an order *nunc pro tunc*to take the place of one it might have intended to make, but which was not made nor ordered?

This court in the case of *Shober*v. *Tbe State*quoted with approval *Bullitt County*v. *Washer.,*130 U. S., 132, 149, as follows:

> “The well settled maxim that a court of record can act only through its orders made of record, when applied to judicial proceedings, means that where the court must act itself, and act directly, that action must always ‘be evidenced by the record.”

The rule as to orders, *nunc pro tunc*is well stated in *Gardner*v. *People,*100 Ill. App., 254, 257:

> “Courts can, by *nunc pro tunc*orders, supply ommissions in the record of what was actually done in the cause at a former time, and by mistake or neglect of the clerk was not entered in the clerk’s minutes or the court’s records; but when the court has failed to make an order which it could have made and in fact intended to malte it can not subsequently make the sáme *nunc pro tunc*so as to make it binding on the parties to the *133suit from the date it was intended to have been so entered.” *See*also *Cleveland Leader Printing Co.*v. *Green,*52 O. S., 487.

The written memorandum of the court was no part of the record in the case. *State, ex rel,*v. *Hoffman,*95 O. S., 149.

For the errors stated .the cause will be reversed.

Shohl, P. J., and Hamilton, J., concur.