Herman v. Ohio Finance Co.

• Decision Date: 28 October 1940
• Citation: 66 Ohio App. 164,32 N.E.2d 28
• Parties: HERMAN v. OHIO FINANCE CO.
• Court: Ohio Court of Appeals

32 N.E.2d 28

66 Ohio App. 164

HERMAN v. OHIO FINANCE CO.

Court of Appeals of Ohio, Ninth District, Summit.

October 28, 1940

Syllabus by the Court.

The power of the court to enter a judgment nunc pro tunc is restricted to placing, upon the record, evidence of judicial action actually taken, and it cannot be used to change a judgment which has been actually rendered, even though such judgment may have been one to which the prevailing party was not entitled under the law and the evidence.

John McIntosh of Akron, for appellant.

Buckingham Doolittle & Thomas, of Akron, for appellee.

DOYLE Judge.

Clarence A. Herman, in a petition filed in the Common Pleas Court of Summit county, alleged that he executed and delivered a promissory note to the Ohio Finance Company in the sum of $380, and secured the same by a chattel mortgage on his automobile; that his obligation was to be paid in monthly installments; that in December, 1937, sufficient payments had been made to reduce the indebtedness to approximately $265.43; that in March, 1938, at the request of the finance company, he placed the mortgaged automobile in said company's possession upon the representation that 'said car would not be sold while said arrangement was in effect'; that no payments had been made on the note after December, 1937.

The plaintiff further alleged that in May, 1938, the company notified him that the car had been sold and demanded $65.43 as a balance due on the note; that the company refused to render him an accounting of the sale of the car, i. e., the amount for which the car was sold and to whom; that the car was reasonably worth $365; and that it was sold contrary to the agreement.

The prayer of the petition asked for an accounting from the defendant and for a judgment against the defendant 'for the amount found equitably due the plaintiff * * * and for such further relief as plaintiff is entitled to in law and equity.'

The defendant company's answer admitted most of the allegations of the petition. It specifically alleged 'that plaintiff failed to make payments thereafter (from December, 1937), and that he voluntarily placed said car in the possession of the defendant in March 1938; that said car was sold by the defendant, and that there is still due the defendant a balance of $65.43.' The answer continued 'Further answering, this defendant denies each and every other allegation contained in the plaintiff's petition not herein admitted to be true; and having fully answered, prays that plaintiff's petition may be dismissed and that it may go hence without costs.'

The cause came on for hearing before one of the judges of Court of Common Pleas, and at the conclusion thereof the following entry of judgment was personally approved by counsel and by the trial judge, and entered of record on the 24th day of March, 1939:

'This cause came on to be heard upon the petition of the plaintiff, the answer of the defendant and the evidence, and after a full and complete trial the court finds:

'That the plaintiff is entitled to an accounting from the defendant; that the trial has served as an accounting; that the evidence discloses that no money is due to the plaintiff; that the defendant has performed no acts entitling the plaintiff to any money judgment, and that the defendant's motion of judgment for the defendant is not well taken and should be overruled.

'It is therefore ordered, adjudged and decreed that the motion of the defendant be overruled; that the plaintiff is entitled to an accounting; that accounting has been had and plaintiff is entitled to no further relief, no moneys are due to the plaintiff from the defendant, and the plaintiff's petition is dismissed at plaintiff's costs.

'Exceptions are granted to the plaintiff.' (Italics ours.)

In the next term of the Common Pleas Court, on July 28, 1939, there was filed in the same case the following motion:

'Now comes the Ohio Finance Co. and moves that the court reform and correct its journal entry filed on or about March 24, 1939, and the rulings thereon so as to conform to the true findings of the court and the issues decided in the trial had thereon.'

A hearing was held on the motion, and at the conclusion thereof the court approved a journal entry, which was thereupon recorded. The entry was designated 'journal entry nunc pro tunc,' and is in the following terms:

'This cause came on to be heard upon the petition of the plaintiff, the answer of the defendant and the evidence, and after a full and complete trial, the court finds:

'That the plaintiff is entitled to an accounting from the defendant; that the trial has served as an accounting; that the evidence discloses that no money is due to the plaintiff; that defendant has performed no acts entitling the plaintiff to any money judgment and that the defendant's motion to dismiss the plaintiff's petition before evidence heard was not well taken and should be overruled.

'It is therefore ordered, adjudged and decreed that the motion of the defendant be overruled; that the plaintiff is entitled to an accounting; that accounting has been had and plaintiff is entitled to no further relief, no moneys are due to the plaintiff from the defendant and the plaintiff's petition is dismissed at plaintiff's costs. Exceptions are granted to the plaintiff.' (Italics ours.)

It is apparent from the foregoing that the first entry of judgment adjudicated the claim of the plaintiff against the defendant as well as the defendant's motion for judgment against the plaintiff. The second entry of judgment, designated. ' nunc pro tunc,' undertook to determine only the...