Helle v. Pub. Util. Comm. , 118 Ohio St. 434 ( 1928 )

These two proceedings in error are prosecuted from an order of the Public Utilities Commission, both plaintiffs in error being protestants against the application heard and decided by the commission. The Huber Motor Transportation Company filed its application on October 24, 1927, for a nunc pro tunc order to correct an alleged clerical error theretofore made by the commission in the issuance of a certificate of convenience and necessity authorizing an irregular motor transportation route for transportation of freight.

In September, 1923, Bertha M. Huber filed an affidavit setting forth that on or prior to April 28, 1923, she had operated a regular route for the transportation of freight between Green Springs, Ohio, and Cleveland, Ohio, and upon this affidavit certificate No. 345 was issued authorizing a regular freight transportation operation. On the same date Bertha M. Huber filed another affidavit setting forth that on and prior to April 28, 1923, she had operated in good faith a regular route between Green Springs, Ohio, and Willard, Ohio, Tiffin, Ohio, Fostoria, Ohio, Findlay, Ohio, Prairie Depot, Ohio, Pemberville, Ohio, Elmore, Ohio, Toledo, Ohio, Oak Harbor, Ohio, Port Clinton, Ohio. A map of eleven counties showing the points named and the highways connecting them was attached to the affidavit, and the affidavit was supported by affidavits of other parties stating that Mrs. Huber had been operating trucks for transportation of freight upon and over the highways, without definitely stating the points covered by such operation. No other testimony was introduced at that time and of course none was required. Acting thereon the commission issued certificate No. 1123, authorizing an irregular operation to and from Green Springs, in connection with the other points named. Without going into detail it is sufficient to state that the affidavit described an irregular route, and that it lacked many of the requirements to render it sufficient as an affidavit covering a regular route. Some time thereafter, on application, the commission authorized a transfer of both certificates to the Huber Motor Transportation Company. The prayer of the application for the nunc pro tunc order was to have the irregular certificate corrected by making it a regular certificate. The application was protested by a number of transportation companies, including the plaintiffs in error in these error proceedings. Upon the hearing, evidence was taken, and the court granted the nunc pro tunc order. In granting the application the chairman of the commission among other things, said:

"Inasmuch as this is a mere proceeding in which the party is attempting to have that done which the commission intended to do at that time, so that the records will disclose the facts, and inasmuch as the records themselves are either misplaced or lost, the commission will at this time authorize and grant a regular certificate for the reason that that is what was originally intended to be granted and issued under certificate No. 1123."

The foregoing expression indicates that the commission entertained the erroneous notion that an intention entertained by the commission in 1924, but which was not in fact carried into effect, and which so far as the evidence discloses did not result in making an order, can be executed four years later. If the record of the hearing upon this application for a nunc protunc order fairly established that the commission had in 1924 reached the conclusion that Mrs. Huber was entitled to a certificate authorizing a regular motor transportation operation, but that the certificate issued had in fact authorized an irregular motor transportation operation, through a clerical error, the commission would clearly be within its powers in making a correction. On the other hand, while the certificate issued in 1924 was not produced at the hearing, having been lost, it is not disputed that the certificate was in fact one which authorized an irregular transportation operation. The testimony taken at the hearing upon the application for the nunc pro tunc order not only fails to show that a regular transportation operation was authorized in 1924, but does show that a regular operation could not have been legally granted at that time upon the affidavit filed and the other affidavits in support thereof. It is significant that the two affidavits filed by Mrs. Huber in September, 1923, show a wide difference in the character of the transportation service being rendered between Green Springs, Ohio, and Cleveland, Ohio, on the one hand, and the other service to and from Green Springs, which was described in the affidavit resulting in the issuance of certificate No. 1123, on the other hand. These differences are further significant because there was no occasion to file two affidavits if a regular route was intended to be described in both instances and the affiant really desired a regular certificate in and out of Green Springs, with its attendant obligations.

The conclusions reached by the commission in entering thenunc pro tunc order do violence to all the well-established principles governing nunc pro tunc orders. It is not the province of a nunc pro tunc order to correct a mistake in judgment, its sole function being that of correcting a clerical error in the execution of a ministerial act. Where an order has actually been rendered, but not entered on the record in consequence of mistake, neglect, omission, or inadvertence of the clerk or other ministerial officer, the court or other tribunal has power to order that the judgment or order be entered nunc pro tunc. Even so, the fact of its rendition must be satisfactorily established, and it must further appear that no intervening rights will be prejudiced. The power to enter anunc pro tunc order is inherent in courts of justice. This power is necessary in order that the records of a court or other tribunal may be made to speak the truth where a clerical error has intervened. The decisions declaring the power and regulating its exercise are numerous and involved in no difficulty or conflict. A multitude of cases could be cited from other jurisdictions, but they are in such harmony with the decisions of our own state that it is not necessary to go beyond the former decisions of this court to find the controlling principles. In some of the earlier cases it has been held that a nunc pro tunc order cannot be founded upon mere parol proof of what was ordered to be done at a previous term where there is no written minute to sustain it. The later cases have modified this rule, and it is now well established that where the court has an independent recollection of the order made, and where no minute has been made upon records of the court, the independent recollection of the court is quite sufficient to authorize the nunc pro tunc order. Such an application may also be supported by evidence of action taken by the court or other tribunal at a former period, whether the evidence in support consists of records or minutes of the court's action at the time, or of oral testimony of witnesses having personal knowledge of such action taken by such court or tribunal.

In Cleveland Leader Printing Co. v. Green, 52 Ohio St. 487,40 N.E. 201, 49 Am. St. Rep., 725, the syllabus states:

"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 shouldhave been, but was not, then performed."

In Huber Mfg. Co. v. Sweny, 57 Ohio St. 169, 48 N.E. 879, Spear, J., states:

"By inadvertence, no entry of the order so made was entered on the journal. If the order were in fact made — and the court finds that it was — it then became the duty of the clerk to make a proper entry of it on the journal. * * * The remedy for such inadvertence is an order nunc pro tunc, for the proper office of a nunc pro tunc order is to correct the record so as to cause it to show an act of the court which, though actually done at a former term, was not entered on the journal."

Applying the foregoing principles to the instant case it is plain that the commission acted upon evidence introduced to show what action the commission should have taken in 1924, rather than to show what action was in fact taken by the commission at that time. Much of the evidence introduced is outside of any orders or entries either made or recorded by the commission in 1924.

The nunc pro tunc order in this case was made after the hearing on December 13, 1927, but was entered as of February 5, 1924. Having taken considerable testimony at the hearing on December 13, 1927, and that testimony not being confined to matters purporting to show the judgment determined upon by the commission on February 5, 1924, but, on the other hand, having dealt with new facts and circumstances seeking to show the manner of operation of the utility before and after April 28, 1923, it is plain from an examination of the record made on December 13, 1927, that the evidence goes far beyond the allegations of the original affidavit.

The maps, schedules, affidavits, and other data which made up the record supporting the original order show that an irregular operation was desired and an irregular operation granted. Thenunc pro tunc order grants a regular operation, which is in contradiction of the record made in support of the original application.

It is not necessary to consider the numerous questions argued by the protestants other than the principles governing nunc protunc entries. It is sufficient to say that the order of the commission is a new order based upon additional evidence, and an amendment of its original final order, and the order of the commission must therefore be reversed.

Order reversed.

ALLEN, KINKADE, ROBINSON, JONES and MATTHIAS, JJ., concur.