#### BRADFORD, ET AL. *v.*WATTS.

Appeal — notice of the act of party — nunc pro tunc order, cannot be made except the fact transpired — not to correct errors of the party — an unauthorized act cannot be made good by after order of court.

Where a party desires to appeal from the Court of Common Pleas to the Supreme Court, he must enter notice on the records of the court during the term of the judgment, and if he omit the entry, and merely declare in court his *intention*to appeal, that will not authorize the court at a subsequent term, to older an entry nunc pro tunc.

The giving notice of appeal is the act of the party intending to appeal, and if he rely upon the clerk to do it, tiie clerk, as to that act, is his servant, and he must see that he performs his undertaking. s

*496The law allowing appeals must be followed; it is matter of strict law, not resting in the discretion of the court, and if the law is not followed, the appeal is not perfected; the court cannot change the law to cover the party’s neglect.

The proper office of a *nunc pro tunc*order is to preseive the evidence of some act done, when the clerk has neglected to make the entry; the court has no power to order a fact to *be*entered as of another time, which did not then transpire.

After the cause is appealed, the court appealed from has no jurisdiction, and can make no order touching it.

A court cannot make an act legal by after entry, which was not so when done, nor in its discretion allow an appeal in any other way than as the law prescribes.

Chancery. It did not appear on the minutes of the Court of Common Pleas, that notice of an appeal was given on the records of the court at the term when the decree below was rendered; but at a subsequent term, the counsel having satisfied the court, that he stated in court at the former term, that he gave notice of appeal, moved for an order to enter the notice then as of the former term, which was granted. The bond was drawn in the name of all the complainants, as obligors, including the name of one who the complainant had obtained leave to erase from the proceedings in the Court of Common Pleas, though the erasure had not been made — it was executed only by the security, the seals being left blank for the other signatures.

*S. M. Tracy*and Peck,

now moved to quash the appeal:

1. Because the bond was *only executed by the*security.

2. The bond is not given to appeal this case — it contains the name of a person no longer a party.

3. The Common Pleas had no power to make the order for a notice *nunc pro tunc.*

Murphy, contra,

contended that the making a person obligee, who was not a party, would not vitiate the bond; and inasmuch as the court ordered the entry *nunc pro*tunc, this Court must take as if entered at the proper time.

Wright, J.

Three causes are assigned as the ground of this motion to quash; but we shall at present consider only one of them, that which regards the power of the Court of Common Pleas to make the nunc pro tunc order for entering the notice.

The case of *Ludlow's heirs*v. Johnston, 3 *O. R.*577, seems conclusive upon the point. It was there held that a nunc pro tunc order could not be made upon matter resting wholly in parol. That case decided that if the cause is gone from the jurisdiction of the court, it can make no order relating to it. If the case before us was appealed, as is claimed, it was appealed by the fact of notice being given, and the bond filed, before the nunc pro tunc order was made. Under the authority of the case cited, therefore, the court had not the case before it to make any order upon it. If the case *497was not then appealed, the question arises whether the Court of Common Pleas could give an appeal, in any other way than that pointed out by law. The record shows, that the law was not complied with, and that the application to the Court of Common Pleas was to permit the party to do what he should have done before: it was not to supply evidence, (the true office of a nunc pro tunc order) of what had before been done, but of which the legal evidence, through neglect, had not been preserved.

The law 29 *O. L.*78, requires that *notice*of the intention to appeal, shall be *entered by the party*desirous of appealing, *on the records of the*court, during the term at which the judgment or decree is rendered, &c. It is certified to us in this case, that no such notice was, in fact, given; but that the attorney for the party desirous of appealing, satisfied the court that instead of giving notice on the minutes of the court or records, under the law, he had given oral notice in court of his intention to *appeal,1*which was omitted to be entered on the minutes,’ and *thereupon*the court order it to be entered, *as of that time.*It is competent for courts, where things have been done by the court, which can only be evidenced by the record, and by the omission of the clerk, the entry has not been made, to supply the proof by a *nunc pro tunc*entry; but it is supposed the court is without power, by *subsequent*order, to create evidence that a thing took place, which never did in fact occur. The latter is the case before us. The court instead of being satisfied that the notice was given according to law, but not properly evidenced, shows that they were satisfied it was not so done, but done in another way; and therefore, ordered it be entered as if done according to law, because of the mistake of the *party.*The law requires *the party*to give notice on the records: it is his act, not that of the court or the clerk. If he relies upon the clerk to do it, the clerk for that act, is his agent, and the party must, at his peril, see to it, that the act is legally done. If omitted, the court has no power to change it, and make that legal which was not so when done, any more than it has to change the terms of a contract between parties.

The appeal is quashed.