I find myself unable to agree with the conclusion reached by my associates.
The facts as stated in the majority opinion are complete and accurate, except that Rule 13 (a) of the Court of Common Pleas of Summit County is not therein fully set forth. That rule provides:
"The journal entries of all orders, judgments and decrees shall be furnished by counsel for the prevailing party and must be presented to the judge making such order, judgment or decree for his approval within seven days after the decision is announced unless further time is given. Upon failure to so present such journal entry, the decision may be vacated and set aside by such judge, or such judge, upon such failure, *Page 295 may enter the action `dismissed for want of prosecution' * * *."
At the outset of the trial of this action in the Court of Common Pleas, counsel agree that defendant objected to the introduction of any evidence under the petition, for the reason that such a proceeding constituted a collateral attack upon thenunc pro tunc judgment entered in the Simovic divorce case. The trial court reserved that question, and after hearing, held as stated in the majority opinion.
This appeal on questions of law followed.
While the rule announced by the trial court might, under some circumstances, be the correct rule as between persons who are parties to the action, does the same rule pertain to third persons, not parties, whose rights are affected by the entry of the nunc pro tunc judgment?
Here, this appellant's rights under the National Service life insurance policy on the life of her son, attached and vested on the happening of the contingency insured against — viz., the death of her son, on November 6, 1945. Oetting, Gdn., v. Sparks,109 Ohio St. 94, 143 N.E. 184, syllabus 2. Katz v. OhioNational Bank, Exr., 127 Ohio St. 531, 191 N.E. 782, syllabus 1.
At that time there was not even a pending divorce action between the Simovics, the divorce action having been dismissed for want of prosecution by the Common Pleas Court under Rule 13 (a) on December 18, 1942.
The attempted marriage between Gladys Louise Simovic and Snodgrass, Jr., took place at a time and under such circumstances that it could not even be claimed to be anything other than voidab initio.
So, at the time of Snodgrass, Jr's., death, he had no legal wife, and it follows that his mother's rights, as contingent beneficiary, immediately attached.
Thereafter, on February 5, 1946, the dismissal of *Page 296 the Simovic divorce action was vacated, the action "reinstated," and the nunc pro tunc entry of a divorce decree spread upon the journal of the court. Such a proceeding, however, could not breathe the breath of life into a marriage contract between this defendant and Snodgrass, Jr., for that contract was void when executed, and continued so up to the time of Snodgrass' death, and thereafter, of course, was incapable of ratification.
When the entry nunc pro tunc was journalized on February 5, 1946, this plaintiff could not intervene in that action to protect her vested rights, because she was not a party thereto. She then did one of the things which she could do, when she filed the action under review.
If this action as filed below is held to constitute a collateral attack upon a valid judgment, then this plaintiff's case is the inadmissible one of a clear legal right without a remedy.
The writer of this opinion is convinced that the opinion of Spear, J., in the case of Coe v. Erb, 59 Ohio St. 259,52 N.E. 640, 69 Am. St. Rep., 764, clearly permits the action filed by this plaintiff, and justifies the conclusion that this action does not constitute a collateral attack upon a valid judgment, but on the contrary is a legally justifiable attempt by this plaintiff to protect her vested right to the proceeds of the policy in question. It is stated in that opinion (pp. 268-272):
"While it is true that the parties must resort for relief from the judgment, to a direct attack, as by appeal, motion to correct, or proceeding in error, yet strangers to the judgment, not being entitled to impeach it directly, and who if the judgment were given full faith and effect, would be prejudiced in some pre-existing *Page 297 right, are placed upon a different footing. It is said by Professor Freeman, in his work on Judgments, section 335, that `being neither parties to the action, nor entitled to manage the cause nor appeal from the judgment, they are allowed to impeach it whenever it is attempted to be enforced against them.' * * * It is a general and established rule of law, that when a party's right may be collaterally affected by a judgment, which for any cause is erroneous and void, but which he cannot bring a writ of error to reverse, he may, without reversing, prove it so erroneous and void, in any suit, in which its validity is drawn in question. * * *
"* * * * In Downs v. Fuller, 2 Met., 135, it is held that: `When a judgment, recovered contrary to law, is prejudicial to a third party, he may avoid it by plea and proof.'"
See, also, Eldridge Higgins Co. v. Barrere, 74 Ohio St. 389, at pp. 394-395, 78 N.E. 516.
In my opinion, the entry nunc pro tunc of the judgment of divorce in this case was highly erroneous and void, for three reasons:
First, because the entry of dismissal was regularly made and finally disposed of the case, unless proper proceedings were instituted to set aside that entry and reinstate the case.
I believe that Rule 13 (a) of the Common Pleas Court (corresponding to some extent to Rule VIII of the Court of Appeals) is a valid rule, that the divorce case was rightly dismissed, and that all proceedings after such dismissal were void, as more fully set forth in the next heading.
I further believe that, while the court, as the maker of Rule 13 (a), might have refused to enforce it, whatever right there might have been in the court to enter *Page 298 judgment nunc pro tunc before dismissing the action, was lost when the court determined to enforce the rule rather than enter judgment nunc pro tunc.
Second, because no proper proceedings were instituted to vacate the entry of dismissal and "reinstate" the case.
It will be noted that, not only was no ground of Section 11631, General Code, set forth in the motion attempting to vacate the judgment of dismissal, but that no semblance of a valid reason for vacation was offered; the purported reason being that plaintiff was "under the impression that defendant had paid the court costs." It will at once be evident that, even though payment of the costs had been made by the husband, the plaintiff would still have remained undivorced.
In addition, the proceedings were not commenced within the time limited for such proceedings by Section 11640, General Code.
Third, because courts are not authorized to enter judgmentsnunc pro tunc where, as here, the only reason advanced for the request is the party's own negligence.
Though courts have inherent power to enter judgments nunc protunc, the power in its proper use is limited primarily to delays attributable to the court, or at least in the interest of justice where no blame rests on the petitioning litigant; it is not, or at least should not be, used as a means of obviating the plain negligence of litigants.
"The power of the court to enter judgment nunc pro tunc should be used sparingly * * *; relief by entry nunc pro tunc will not be granted where the failure to enter the judgment at the proper time was due to the party's own carelessness or negligence. * * * *Page 299
"So too such an entry will not be allowed where it will prejudice the rights of third persons who are without notice of the original rendition of the judgment * * *." 49 Corpus Juris Secundum, Judgments, Section 118 a.
And see 30 American Jurisprudence, Judgments, Section 103. 1 Freeman on Judgments (5th Ed.), Section 122.
Of course, great leeway is afforded courts during the same term.
In this case, no claim was made that plaintiff endeavored in any way whatsoever, before the proceedings here in question, to have the divorce judgment entered, or even that anyone had ever represented to her that the entry had been filed, or misled her in any way as to the status of the divorce proceeding.
It does not seem to me that the Caprita case, cited by the majority, has any application to the case at bar. There, one of the parties died two days after the announcement of the decision. Some two weeks later, and apparently at the same term of court, and particularly without any claimed negligence on the part of anyone, the trial court entered the judgment nunc pro tunc, although over the objection at that time of the surviving party.
There is another reason why I think the entry nunc pro tunc herein is void, but which only the Supreme Court can recognize at this time. That is the generally-accepted rule that, before a judgment nunc pro tunc can be entered under any circumstances after the end of the term, some memorial of a specific judgment must appear on the judge's docket or other court record. In this case no such record appears. The jacket of the original case contains only the information that the case had been heard and that a journal entry was to *Page 300 be furnished; indicating, it seems to me, that the judgment in the case — whatever it was — was to be entered when the entry was furnished.
The Supreme Court of this state considered, in 1897, the question of extrinsic evidence where no such memorial was in existence, and decided that parol evidence could be admitted to ascertain what the judgment of the court was. Jacks v. Adamson,56 Ohio St. 397, 47 N.E. 48, 60 Am. St. Rep., 749. However, since the weight of authority is contrary to that decision (49 Corpus Juris Secundum, Judgments, Section 120 c), the Supreme Court of this state may now desire to adopt the majority rule. See: Puccinelli v. United States, 5 F.2d 6 (where it was said that the "overwhelming weight of authority" supports the "memorial" rule); Gagnon v. United States, 193 U.S. 451,48 L. Ed., 745, 24 S. Ct., 510; DuPree v. Hart, 242 Ala. 690,8 So.2d 183; and especially Young v. Young, 165 Mo., 624,65 S.W. 1016 (where it was held that a nunc pro tunc entry in violation of this rule is void).
It might also be observed in passing that the case of Hoffman v. Shuey, cited in the majority opinion, held that this record memorandum was necessary, and cited many cases where that court refused to enter judgments nunc pro tunc where such records did not exist.
And in the Hobson case, relied upon by the majority, it definitely appears from the opinion that the nunc pro tunc entry was made on the basis of a written memorandum by the judge who decided the case, and that the absence of the entry was due to inadvertence (it does not say of whom), rather than by reason of negligence of the petitioner. Also, in neither the Caprita case nor the Hobson case had the action been dismissed, and then purportedly reinstated for the *Page 301 express purpose of entering a nunc pro tunc judgment, as in the case at bar.
If there be any vitality remaining in the rule that a court speaks only through its journal, then the Simovics were not divorced at the time of Snodgrass, Jr's., death, and Mrs. Simovic and Snodgrass were not legally married upon said date.
The only person then eligible to take under the law governing National Service insurance was this plaintiff, as contingent beneficiary, there being no legal wife.
I am not persuaded that a mother who brings a son into the world is relegated to a position of "gratuitous beneficiary" inferior to that of a woman who enters into a legally meretricious relationship with that son, nor am I convinced that any court would declare a constructive trust for the benefit of Gladys Simovic to deprive this plaintiff of the proceeds of an insurance policy on the life of her son, to which this plaintiff was legally entitled.
It is my opinion that the judgment under review should be reversed, and this plaintiff accorded the relief for which she prays in her petition.
I accordingly dissent from the conclusion announced by my colleagues. *Page 302