#### Tresemer, Appellee, *v.*Gugle et al., Appellants.

(No. 3426

Decided December 3, 1941.)

*Mr. Henry G. Binns*and *Mr. James I. Boulger,*for appellee.

*Messrs. Addison, Isaly é Addison,*for appellants.

Barnes, J.

The above-entitled cause is now being determined on plaintiff’s motion to dismiss defendants’ appeal. ,.

The original action was one for accounting. Issues were joined and upon bearing the trial court found for the defendants and dismissed plaintiff’s petition.

This order and judgment of the court were journal- “ ized April 22, 1938.

*410On January 25, 1941, plaintiff filed a motion in the following language, omitting the formal parts :

‘ ‘ Comes now plaintiff and moves the court to vacate the judgment entry heretofore, on April 22,1938, made and entered herein, and to make and enter in lieu thereof an entry *nunc pro tunc*which shall truly reflect the findings and decisions of the court.”

The motion also provided for notice that the same would be for hearing before Honorable Dana F. Reynolds, judge of the Court of Common Pleas, Franklin county, Ohio, on February 1, 1941, at nine o’clock, a. m.

On June 21, 1941, the court caused to be journalized its order and judgment, entering a *nunc pro time*order, as per request of plaintiff. The *nunc pro tunc*order is very lengthy, and hence we will not set it out in full. The purpose of a *nunc pro tunc*order is to have the judgment of the court reflect its true finding and whenever the original judgment entry does not so do, the trial court has very broad powers to correct the ■entry by *nunc pro tunc*order.

As appears from the brief of counsel for plaintiff, the object of the motion was to have the trial court amplify the judgment so that it would properly reflect the scope thereof as determined by the court. The claim is made that plaintiff had brought an action at law against the defendants covering the same subject-matter, and was met in defense with the claim that the trial court has very broad powers to correct the *res judicata.*

The original judgment was very broad in its terms. The *nunc pro tunc*judgment contained, among other things, the statement that plaintiff’s action for accounting was dismissed because he had an adequate remedy at law.

On June 23, 1941, defendants, through their attor*411neys, filed a motion which, omitting the formal parts, reads as follows:

“Now come the defendants herein and move the court:

“1. To strike from the files the entry filed herein in this cause on the 21st day of June, 1941, for the reason that the court had no jurisdiction, right, power or authority to make such entry.

“2. For rehearing on the motion filed herein to set aside the judgment entered on the 22nd day of April, 1938, for the reason that the same was entered without any evidence, without any hearing on the facts and that said judgment is contrary to law and was void and of no force and effect, the court being wholly without jurisdiction to make such an order.

“3. Said judgment is erroneous and void for the reason that it was entered within three days after the decision of the court and before a motion for a new trial had been filed and at the time of said entry no motion for a new trial had been filed.”

On August 30, 1941, through journalized entry, the trial court overruled defendants’ motion in its entirety. In addition, the original entry contained the following:

“The court finds that plaintiff’s said motion for an entry *nunc pro tunc*was heard and determined by the court on the record and the original papers filed in said cause, including the written decision rendered by the court on April 16, 1938, which was the basis of plaintiff’s motion for said *nunc pro tunc*entry, although there was no formal proffer of same as evidence, and that at the hearing on said motion for the *mine pro tunc*entry counsel for the defendants was present in court and declined to participate in said hearing. ’ ’

*412Then follows the language through which the motion to strike and for a rehearing was overruled.

On September 2, 1941, defendants filed notice of appeal which, omitting the formal parts, reads as follows:

“Now come the defendants herein and give notice of their intention to appeal on questions of law from a judgment entered by the Court of Common Pleas, Franklin county, Ohio, in this cause on the 21st day of June, 1941, and on the 30th clay of August, 1941.”

Counsel for defendants filed a transcript of docket and journal entries, and on October 3, 1941, filed their brief on the merits.

On October 22, 1941, counsel for plaintiff filed a motion to dismiss the appeal. This motion, omitting the formal parts, reads as follows:

“Comes now Carl Tresemer, appellee, and respéctfully moves the court to dismiss the appeal herein filed for the reasons and upon the grounds following, to wit:

“1. That the entry of August 30, 1941, overruling motion to strike the *nunc pro time*entry of June 21, 1941, from the files is not a final order from which an appeal on questions of law can be taken herein;

“2. That the *nunc pro tunc*entry of June 21, 1941, correcting the judgment entry of April 22, 1938, so as to make it truly reflect the finding and decision of the court, is not a final order creating or affecting any substantial right from which an appeal may be taken herein;

“3. That the notice of appeal on questions of law filed September 2, 1941, was not duly filed, nor was it filed within the time required by law;

“4. That no appeal bond has been filed by appellants.”

For the purpose of narrowing the question, we might at this time state that counsel for defendants *413disclaim any intention to appeal from tire *nunc pro tunc*entry of June 21, 1941, but their'appeal is directed to the judgment of September 2, 1941, overruling defendants’ motion to strike and for rehearing. The notice of appeal is broader than now claimed by appellants, and in fact does mention the judgment of ■June 21, 1941, as well as that of August 30, 1941.

We would have no difficulty in determining that the notice of appeal, so far as it relates to the judgment ■of June 21, 1941, can not be effective, for the reason that more than twenty days have expired following its rendition. This rule has its exception in jury cases where final judgment may not be entered until after the ■expiration of the statutory period of three days or the final overruling of such motion, when same has been •duly filed. This provision is fully prescribed under the General Code.

Under the new Appellate Procedure Act, effective •January 1, 1936, and the amendment of Section 12223-7, General Code (118 Ohio Laws, 79), effective June 26, 1939, the provisions relative to new trials apply to other forms of action, including chancery cases. The pertinent portion of the above section reads as follows:

“Provided, that, when a motion for new trial is •duly filed by either party within three days after the verdict or decision then the time of perfecting the appeal shall not begin to run until the entry of the •order overruling or sustaining the motion for new trial. ’ ’

This provision does not mean that motions for new trial may properly be filed in all cases, but the words “duly filed” provide a limitation. The Supreme Court of Ohio, in the case of *Cullen*v. *Schmit,*137 Ohio St., 479, 30 N. E. (2d), 994, makes a very clear pronouncement on this question. Paragraph 3 of the ■syllabus reads as follows:

*414“3. A motion for a new trial is duly filed only when, if granted-, it would result in a reexamination of the issues of fact presented by the pleadings.’.’

Reference is also made to the decision of our court in the case of *Hoyer*v. *Breakfield,*34 Ohio Law Abs., 416.

Measured by these tests, it is obvious that no motion for new trial was necessary or proper in the instant case, and even if defendants’ motion for rehearing1 could be considered as a motion for new trial, it would be ineffective to toll the statutory limitation within which notice of appeal is required to be filed.

Plaintiff’s motion to dismiss the appeal is heretofore set forth in full. The first numbered subdivision makes the broad claim that the entry of August 30, 1943, overruling the motion to strike the *nunc pro-tune*entry of June 21, 1941, from the files was not a final order from which an appeal on questions of law could be taken. Defendants’ motion to strike the*nunc pro tunc*order was on the claimed reason that the-court had no jurisdiction, right, power or authority to-make such entry.

The motion to strike must fail from its own language, for the reason that courts do have jurisdiction, right, power and authority to make *nunc pro tunc*orders. There are times when such *nunc pro time*orders are erroneously made, but when this occurs the-prescribed procedure is an appeal, within the time-prescribed under the pertinent sections of the Code.. The right to make *nunc pro tunc*orders is inherent in the court. This is so stated by the Supreme Court in the case of *Heacock*v. *Byers,*120 Ohio St., 621, 169 N. E., 295. In this case the Supreme Court also makes-the pronouncement that the right is not dependent for its existence on any statute, further that Section *41511631, General Code, has no reference to *nunc pro tunc*proceedings, and that the limitations of Section 11640, General Code, have no application.

The sections above referred to, and others in the ■same chapter, relate to the vacation and modification of orders or judgments after term, and set forth the requisite procedure and the time within which the same may be done. The above decision of the Supreme Court at once eliminates much of the argument and ■citation of authorities in the briefs of counsel.

A very full and exhaustive treatise on the subject ■of *mine pro tunc*order will be found in 23 Ohio Jurisprudence, 678 *et seq.,*Section 256 *et seq.*

We refer to the pertinent parts of some of these sections:

There is no limitation of time for *nunc pro time*•entries. Sections 256 and 288.

The statutory limitations on proceedings to vacate or modify have no application to *mine pro tunc*orders. Sections 256 and 282.

A *nunc pro tunc*order may be made on a court’s recollection or on á memorandum of court. Sections 257 and 259.

A *nunc pro tunc*order mai be made on court’s own motion. Section 289.

While it is probably true that pretended orders, where the court has no jurisdiction, may be attacked directly, collaterally or upon motion, this rule can not be extended to cases where the court does have jurisdiction and the claim is made that it was erroneously exercised. The mere fact that appellants in their motion to strike base it upon the ground of no jurisdiction, right, power or authority, will not be accepted as final -where it clearly appears that the court had jurisdiction. Appellants’ remedy was to file a notice of *416appeal within time from the judgment of the court making the *nunc pro tunc*order. This time may not. be extended by filing motions to strike. If such a procedure was countenanced, every claimed erroneous-order might be attacked by motion and thereby the-cause continued in court indefinitely.

Had the appellants filed their notice of appeal within time from the *nunc pro tunc*judgment, all questions could then have been presented to us on their merits.

It is argued pro and con as to whether the *nunc*pro*tunc*order alters the provisions of the original judgment. While ordinarily, as between the parties, a *nunc pro tunc*order is entered-as of the date of the original judgment, however, if there is a modification which affects the parties’ rights, appeal may be perfected from the actual date of the *nunc pro tunc*order. *Perfection Stove Co.*v. *Scherer,*120 Ohio St., 445, at 448 and 449, 166 N. E., 376.

We are constrained to the view that the entry overruling defendants’ motion to strike, etc., was not a final order, and, therefore, that appellee’s motion to. dismiss the appeal must be sustained.

*Appeal*dismissed.

Geiger, P. J., and Hornbeck, J., concur.