No. 5034.
OPINION
By THE COURT.This cause is now before the Court upon a rehearing granted on the ground of newly discovered evidence. We find from this and also from the former record that although Everett F. Bach was never served with notice of the hearing to be held before the Township Trustees under §5910 GC, the same was waived by his attorney, Matthew L. Bigger, who attended the hearing before the Trustees and was present when the premises were inspected by them for the purpose of making an assign*216ment for the location of the fence. The defendant contends that no assignment was ever made by the Trustees; hence, the nunc pro tunc entry of the same entered upon the township records on March 15, 1955, is null and void. Citing The Cleveland Leader Printing Company v. Green, 52 Oh St 487. The first syllabus of this case provides:
“The province of a nunc pro tunc entry is to correct the record of the court in a cause so as to make it set forth an act of the court, which though actually done at a former term thereof, was not entered upon the journal; and it cannot lawfully be employed to amend the record so as to make it show that some act was done at a former term, which might or should have been, but was not, then performed.”
Our examination of the record reveals that the township trustees acted on two occasions on the subj'ect matter, first, in the year 1948, and then modifying the order on May 5, 1950. The order of modification was made upon complaint being made by letter to the Trustees on November 10, 1949, the same having been written by M. L. Bigger as attorney for Everett F. Bach. In this letter, which is marked as Defendant-Appellant’s Ex. No. 5, he recognized the first assignment, for in it he states;
“Everett Bach built his one-half of such fence along Indian Run to the point designated as agreed upon and fixed by the trustees, and said Mary Crawford acting through her agent, built a fence * * * trespassing on the property of Everett F. Bach, contrary to the place of crossing fixed and conditions agreed upon by the trustees upon their viewing of the premises in July, 1948.”
“The undersigned therefore, respectfully requests the trustees, to view the premises and see that said fence is erected and placed as agreed upon and as heretofore directed by such trustees as provided by statute; * * *.” (Emphasis ours.)
In compliance with the request of the foregoing letter the premises were again inspected by the Township Trustees on May 8, 1950, which resulted in a modification of the original assignment. We find from the evidence that the Trustees acted upon the complaint of Everett Bach, but that no record of the same was entered in their official records. Since our first hearing in this matter the action taken by the Trustees on May 8, 1950, now has been journalized as of said date by order of the Trustees duly enacted on March 15, 1955. This entry, we find, is in accordance with the action taken by the Trustees at the time stated therein, and the same has been recorded in the records of the Recorder of Franklin County. It is therefore a valid and subsisting order. It is conceded by all of counsel that a fence has been constructed in accordance with the order of. assignment which was journalized on March 15. Whether or not the order commanding each of the parties to construct a portion of the fence was lawful is not before us, since this order has been complied with. The fence is now constructed on the lines fixed by the Trustees and the same will be protected by court order.
Our judgment is for the plaintiff for the relief prayed for in the petition and also for costs of suit.
MILLER, PJ, HORNBECK and WISEMAN, JJ, concur: