(Fifth Circuit — Licking Co.Ohio, Circuit Court.

April Term, 1896.)

Before Pomerene, Adams and Price, JJ.

.(Judge Price of the Third Circuit taking the place of Judge Kibler.)

#### THE STATE OF OHIO EX. REL. THE UNION CENTRAL LIFE INSURANCE CO., v. CHARLES W. SEWARD, AS PROBATE JUDGE OF LICKING CO., OHIO.

*Appeal*— Oral *announcement of decision of court, with instructions to counsel to make computations and prepare decree accordingly*— Notice *of appeal—*

In an action brought by an administrator in the Probate Court for an order to sell real estate of the deceased in order to pay debts, several mortgage lien holders were made parties, and there was a contest between some of such lien holders as to the amount due on them, and also their order of priority; and *444the questions arising on such contest were heard and submitted to the court and taken under advisement, until the 18th day of October, at which time the court (there being no trial docket for said court), orally announced the order of priority of the liens and their probable amount, but made no accurate or exact finding of said amounts, and at the same time directed counsel in the case to prepare an entry showing the true amounts due on the several liens and a full finding of facts and a decree accordingly, which was so prepared and filed and entered upon the journal on the 12th dayjof November of the same year.

Held: The true date of the findings and decree is November 12th, and that a party to such decree may give the required notice and perfect his appeal within the statutory time thereafter; and that a writ of mandamus to compel the Probate Judge (he being his own clerk), to enter said findings and decree as of the 18th day of October, will be refused.

Mandamus.

Price, J.

This is a petition for mandamus. In September, 1895, three was an action pending in the probate court of Licking county, between Jonathan V. Hilliard, as administrator of the estate of John Strawn, deceased, and also Jonathan V. Hilliard in his individual capacity, as plaintiffs, and Carrie Sanford, with certain others, together with the Union Central Life Insurance Company, as defendants.

The object of the proceeding, as we gather it, was to sell certain real estate to pay debts, and to determine the amounts, validity and priority of the liens on the premises. The principal controversy, however, was between the Union Central Life Insurance Company, and the other parties plaintiff and defendant who were interested in the premises. Motions to pleadings had been disposed of. and issues were joined,so that on the 22nd of September, 1895,the cause was heard upon its merits. Arguments of counsel were made, and the case submitted to the court for its determination, the result to be announced at some future day, of which counsel for the parties'should have notice. Notice was giv*445en for counsel to appear before that court on the 18th day of October,1895, and on that day the court announced oral-' ly its conclusions on the facts and the law of the case, concerning the various questions submitted, and gave to counsel time to make necessary calculations of amounts due, and prepare an entry embracing the same, with the findings and orders of the court which would be proper to follow. No oral announcement was made of the amounts due by either of the parties claiming liens on the premises; nor are we informed that any order or decree was made or announced by the court at that time or on that day; the evidence that we have, being simply that on that day he announced his conclusions of fact and law. Time — no definite period being mentioned — 'was allowed counsel to prepare a proper entry covering the entire case heard and submitted. It further appears that the relator — the Insurance Company, had the larger claim on the assets of the estate which had been converted into money, and, so far as the amount was concerned, was largely interested in having a speedy as well as correct record made of the judgment and decree of the court, and upon its counsel devolved a large part of the responsibility of drawing such entry. Another fact which appears is, that at that time the probate court kept no trial docket nor minute book upon which any memoranda of his findings, orders or decree could be made. On the 12th day of November, 1895, counsel had agreed upon the entry which they had been directed to draft. It was furnished to the court as the entry upon which the parties had agreed, and it was recorded upon the journal as of that day, and showing that the finding, order, and decree of the court were made on November 12th. It is shown that on that day the plaintiff gave written notice of his intention to appeal the case to the court of common, pleas; which appeal was afterwards perfected; and, for that matter, it appears also from the transcript introduced in evidence that the In*446surance Company also gave notice of its intention to appeal. But we attach no importance to that, whether it be a fact or not. Nor do we give any weight to that part of the entry wherein the court found that notice of appeal was. given within twenty days, as required by law; because it clearly appears that the entry was made of record- on November 12th, 1895.

.The relator sought, by motion, in the probate court, to correct the entry so as to show that the order and decree were in fact made on the 18th of October; which, if true, and the record would so show, will place the notice of appeal beyond the twenty days allowed by law. This application for mandamus is made asking this court to compel the probate judge (he being his own clerk) to correct the entry made of November 12th. Should we allow the writ? — is the question raised on the facts before stated, and which we find to be the facts in the case.

It is well to look to the sections providing for appeal in such cases from the probate court, because the language of those sections may throw some light upon the subject in controversy. I read first from section 6407:

> “In addition to eases specially provided for, appeals may be taken to the court of common pleas, from any order, decision, or judgment of the probate court in settling the accounts of an executor, administrator, guardian and trustee, and assignees, trustees and commissioners of insolvents; in proceedings for the sale of real estate for the payment of debts.”

Then, from section 6408:

> “The person désiring to take an appeal, as provided in the preceding section, shall, within twenty days after the making of the order, decision or decree from which he desires to appeal, give a written undertaking, executed on the part of the person appealing, to the adverse party.”

Was there any judgment, order, or decree rendered or made on the 18th of October? Or, on that day, did the *447court merely announce the lines upon'which a judgment and order would be made, to furnish counsel present, simply an outline or skeleton as to the form the judgment or order would assume when put together and the work completed ? It does not appear that any order or decree was formally or orally announced on the I8th of October; nor was there a finding of any particular amount due to the claimants; but the court did announce the order of the liens. He announced his conclusions of fact and law, it is said. What conclusions of fact, and what conclusions of law? They do not appear in this case. If it is sought to establish, independent of the record, that a certain finding of fact was made by the court, and a certain conclusion of law reached by it, the proof should be somewhat clear as to what such finding and conclusions were. The judgment or order, existing in parol, if it can so exist, must be distinct, in formal and binding terms, even if it be oral, as is the entry of the same when made of record. There must be no more uncertainty as to what the judgment and finding in parol may be, than as to the meaning of the record when the record is made. There was no finding of any1 amount, as we have said, that was due to either party. . If the court found a certain amount due to one or the other of the contesting parties, perhaps an appeal would not be desired. Whereas, if it exceeded^that in any material or substantial sum, an appeal would be desired. That matter could only come home to the party when the calculations had been completed and the entry made. The proof falls below the standard named, we think — the only sa fe standard in this case; and especially'where we are called upon to force, by a peremptory order, the probate judge, or clerk of the probate court, to so change an entry as to show its action to have taken place on the 18th of October, instead of on November 12th.

We hold that there was no finding, judgment, or order *448made on the 18th of October in the legal sense; that the same were made on November 12th in the legal sense, the time to which the case was passed for the formulation of the findings and the order of the court.

For these reasons, the writ of mandamus is refused, at the costs of relator, and judgment for costs.