Warrington & Gibson v. Upham Manufacturing Co.

18 Ohio C.C. 311

• Court: Ohio Circuit Courts
• Decided: January 15, 1899
• Status: Published

Opinion

Adams, J.

We are asked to reverse an order and judgment made April 11, 1898, directing an amended judgment purporting to have been made June 29, 1895, so as to make it appear that it was made and entered July 22, 1895, and that the order allowing the bill of exceptions was made and entered September 9, 1895, instead of June 29, 1895, as it originally appears.

The judgment in the court below, that is the main judgment, was in favor of the plaintiffs, Warrington and Gibson, and against the Upham Manufacturing Company.

The Upham Manufacturing Company has prosecuted error through the circuit court to the suppreme court of the state of Ohio. As we understand it, the proceeding is still pending. The original judgment was rendered some time in 1895; as the entry originally stood on June 29, 1895. The motion for a new trial was overruled and judgment entered,and the bill of exceptions allowed and the entry allowing it entered on the same day. Nearly three years thereafter the Upham Manufacturing Company filed its motion in the court of common pleas to correct that entry so as to show the true dates to have been July 22 for the overruling of the motion, and September 9 for the entry allowing the bill of exceptions. Such an order is a final order made in a special proceeding and affecting the substantial rights of the parties, and may be reviewed and, if erroneous, reversed on error.

We think that the date of a judgment is a material part of it. It affects the judgment very materially when it comes to the question of having it reviewed on error, It may affect it as to the supersedeas bond; it would affect it slightly as to the computation of interest. It is a material part of the judgment.

The plaintiffs in error in this proceeding claim that this proceeding before the common pleas to correct the date of his entry was without notice to them, without their knowledge, and while affidavits were filed in support of that motion, there is no bill of exceptions, and those affidavits are not before the court.

This proceeding is governed by section 5354, Revised Statutes, which provides when and how the common pleas or circuit court may vacate or modify its judgment or order after the term, and provides for ' correction of the mistake, negligence or omission of the clerk, or irregularity in obtaining a judgment or order.

This is clearly for a mistake. This is the ground on which the manufacturing company proceeds.

Section 5357 provides that the proceedings to correct mistakes or omissions of the clerk or irregularity in obtaining the order or judgment shall be by motion upon reasonable notice to the party or attorney in the action. It is claimed here that no notice was given, On the other hand it is contended that while no written notice was given, actual notice was given by word of mouth.

Section 5123 of the Revised Statutes provides that when notice of a motion is required it must be in writing. So that this disposes of that question unless there is something in the record to show that the party received notice, or entered an appearance.

But the journal entry in this case is silent on that subject. It is silent on the subject of notice, and there is nothing in that entry to show that the party waived the notice by appearance or otherwise.

W. W. Prather, or Plaintiffs in Error. H. P. Lloyd, for Defendant in Error.

Counsel have cited us to the case in 12 Ohio St., 136, which, we think, is decisive of the question.

“Where a final judgment in a case has been rendered by the court of common pleas, it is error for the same court to vacate such judgment át a subsequent term on the motion of one of the parties without notice to the other party or his attorney. Where the record is wholly silent in regard to such notice and no waiver is shown by appearance, no presumption of notice can be admitted to prevent the direct impeachment of the order vacating the prior judgment.”

It may be said here that this did not vacate the prior judgment, that it simply changed the date; but if the court has power on a mere application of a party without notice to the other party to correct a date, the court, by the same exercise of power may correct the amount or may wholly set aside the judgment at any time within three years after judgment is rendered.

On this authority and the sections of the statute to which I have referred, we are of opinion that the action of the court of common pleas in amending .and correcting this judgment so as to show that they were entered at different dates from that of the original entry, without notice to the other party, was unauthorized and is therefore reversed.