Eldridge & Co. v. Barrere

• Citation: 74 Ohio St. 389,78 N.E. 516
• Decision Date: 26 June 1906
• Docket Number: 9553
• Parties: The Eldridge And Higgins Company Et Al. v. Barrere.
• Court: United States State Supreme Court of Ohio

78 N.E. 516

74 Ohio St. 389

The Eldridge And Higgins Company Et Al. v. Barrere.

No. 9553

Supreme Court of Ohio

June 26, 1906

Journal entry confessedly made and entered on certain day - Same entry later fixing time within which decree is to be performed - Latter entry not regarded as nunc pro tunc, when - Question of date of validity of decree - Motion for new trial - Pleadings - Legal procedure.

1. Where a journal entry confessedly made and entered on the fourth day of November, 1904, begins with the recital "This day this cause came on to be heard on the pleadings and the evidence and was argued by counsel; on consideration whereof the court does find on the issues joined in favor of the plaintiff and against the defendants," etc., but thereafter the same entry, in fixing the time within which the decree it records is to be performed, uses the following language: "within thirty days from the rendering of this decree, to wit: the twenty-fourth day of October, 1904," the latter recital will not be held so far controlling as to give to such entry the effect of an entry nunc pro tunc, nor does it operate to give said decree force and validity from October 24, 1904. But such decree is valid and operative only from November 4, 1904, the date of its entry, and a motion for new trial filed within three days thereafter is in time.

2. An order of the court dismissing and striking from the files a motion for new trial without considering or determining such motion on its merits, is a final order reviewable on error. (Young v. Shallenberger, 53 Ohio St. 291, distinguished.)

The original action, out of which the present proceeding in error arises, was commenced by the defendant in error Carlisle Barrere against plaintiffs in error The Eldridge & Higgins Company et al., in the court of common pleas of Franklin county, Ohio, on March 30, 1903. Judgment having gone against them in the court of common pleas, plaintiffs in error on December 31, 1903, appealed said cause to the circuit court. The cause was again tried in the circuit court, and the judgment being again adverse to the plaintiffs in error (defendants in the courts below), they, on November 4, 1904 filed their motion for new trial, which motion was as follows:

"Now come the said defendants by their attorneys and move the court here to vacate the judgment herein rendered and to grant a new trial of this case for the following reasons substantially affecting the rights of the said defendants.

"1. Said judgment is contrary to the evidence in the case and against the manifest weight thereof.

"2. Said judgment is contrary to law.

"3. Said judgment was given for the plaintiff when it ought to have been given for said defendants.

"4. The defendants were entitled to a judgment in the case upon the uncontradicted evidence and the pleadings.

"5. Other errors apparent upon the record.

"Wherefore the defendants pray the court to vacate and set aside said judgment and for a new trial of this action."

Thereafter on March 6, 1905, the defendant in error, Carlisle Barrere (plaintiff below), filed in said cause the following motion:

"The plaintiff moves the court to strike from the files of this court the motion for a new trial filed by defendant herein on the fourth day of November, 1904, for the following reasons to-wit:

"1. Said motion was not filed within the time required by law.

"2. No motion for a new trial in this case was or is necessary."

On April 1, 1904, this motion was sustained by the circuit court for the cause alleged in the first paragraph thereof, and the motion for new trial filed by plaintiffs in error, was ordered to be stricken from the files. Additional facts are stated in the opinion herein.

Mr. Thomas E. Powell, for plaintiffs in error.

Messrs. Huggins, Huggins & Johnson, for defendant in error.

CREW J.

This proceeding is prosecuted by plaintiffs in error to obtain the reversal of an order made by the circuit court of Franklin county, Ohio, dismissing and striking from the files,--for the alleged reason that the same was not filed within the time required by law,--the motion of plaintiffs in error for a new trial, without considering or determining said motion on its merits. Section 5307, Revised Statutes, provides: "The application for a new trial must be made at the term the verdict, report, or decision is rendered; and, except for the cause of newly discovered evidence, material for the party applying, which he could not with reasonable diligence have discovered, and produced at the trial, shall be made within three days after the verdict or decision is rendered, unless such party is unavoidably prevented from filing the same within such time." It is not disputed in this case that the motion for new trial filed by the plaintiffs in error, was filed at the term of the circuit court at which the final decision was rendered, but it is the contention of counsel for defendant in error that said motion, which was filed on November 4, 1904, was not filed within three days after such decision was made, and it is their claim that this fact is affirmatively shown by the following entry in said cause made and entered upon the journal of the circuit court on November 4, 1904.

"November 4, 1904. This day this cause came on to be heard on the pleadings and the evidence and was argued by counsel; on consideration whereof the court does find on the issues joined in favor of the plaintiff and against the defendants that the defendants have abandoned all defense as to the second cause of action in plaintiff's petition contained and concede plaintiff's right thereto; that the plaintiff is in law and equity the rightful holder of the certificates of stock Nos. 29 and 37, as described in plaintiff's petition, as pledgee, for value as for a present consideration, and that he is entitled to have...