Cameron v. Gordon

• Court: United States Court of Appeals (Ohio)
• Citation: 33 N.E.2d 1016
• Decision Date: 24 December 1940
• Parties: CAMERON v. GORDON.

33 N.E.2d 1016

CAMERON
v.
GORDON.

Court of Appeals of Ohio, Second District, Franklin County.

Dec. 24, 1940.

Action by C. S. Cameron against J. P. Gordon to recover on written contracts, to appoint a receiver, and to require defendant to account for funds lost by mismanagement in violation of contracts, wherein defendant filed a cross-petition. From a judgment for defendant on the cross-petition after plaintiff had dismissed his action, plaintiff appealed.-[Editorial Statement.]

Affirmed.

[33 N.E.2d 1017]

David T. Keating, of Columbus, for plaintiff-appellant.

Allen I. Pretzman, of Columbus, for defendant-appellee J. P. Gordon.

HORNBECK, Presiding Judge.

The appeal as it now comes to our attention is on questions of law and the following six errors are assigned:

(1) In reinstating part of an alleged cross-petition on the application without notice of J. P. Gordon, defendant, in that court, after plaintiff had dismissed his action therein.

(2) The court erred in overruling the motion of plaintiff below to set aside said reinstatement.

(3) The trial court erred in trying the action solely on the alleged cross-petition which was a defunct pleading.

(4) The court erred in finding for defendant on said alleged cross-petition.

(5) The court erred in not sustaining plaintiff's motion for a change of venue.

(6) Other errors manifest on the face of the record.

At the outset it may be observed that there is no authenticated testimony before this court. There is no bill of exceptions settled and allowed by the trial judge. There is found among the papers what purports to be a transcript of the proceedings taken before Hon. Dana F. Reynolds, Judge, on the 16th day of January, 1940, marked, ‘Appellee Gordon's Exhibit B,’ but there is no certificate whatever of trial judge or court reporter and no agreement of counsel that it constitutes the testimony taken in a hearing in the cause. So that, there is no observance whatever of any provision of the statute which would give the so-called transcript of proceedings any standing in this court as representative of testimony taken in the cause in the trial court. We are, then, in a consideration of the errors assigned, remanded to those only as to which there may be an exemplification in the papers found in the transcript of docket and journal entries from the Common Pleas Court. With this limitation, then, we consider the errors assigned in the order in which they appear.

(1) The action of the court in reinstating the cross-petition of the defendant without notice to the plaintiff, and

(2) Error in overruling the motion of plaintiff to set aside the reinstatement.

[33 N.E.2d 1018]

Chronologically, insofar as germane to these assignments of error, it appears that plaintiff filed his amended petition. Defendant, Gordon, answered, setting up two defenses, and cross-petitioned. Plaintiff replied to certain affirmative matter in the answer and generally denied the averments of the cross-petition. Thereafter the cause came on for trial upon issues joined and was partly tried to Judge Reynolds and cause continued for later hearing. Following this continuance, plaintiff, without notice to counsel for defendant, moved the court for leave to dismiss the action and the court approved an entry dismissing the cause generally at cost of plaintiff. A few days thereafter when counsel for defendant, Gordon, discovered that the cause had been dismissed, which included dismissal of the cross-petition and reply thereto, application was made to the court to modify the former entry of dismissal. No notice was given to plaintiff or his counsel of this application. The application to reform the entry of dismissal, among other things, recites that the cause had been partly tried before Judge Reynolds, sitting in the equity; that it was set for final trial on January 16, 1940; that the entry of dismissal was submitted to the court without knowledge of the defendant, Gordon, and that he desires to introduce evidence under his cross-petition.

The court in sustaining the motion to reform plaintiff's entry of dismissal found that all of the recitals of the application were true and if was ordered, which was carried into an entry, that plaintiff's entry of dismissal be reformed to effect that the plaintiff's petition only be dismissed at plaintiff's cost and that the cause be retained for trial upon the cross-petition of defendant Gordon.

This action of the trial judge was vigorously contested by plaintiff and was made the subject of an attempted appeal which was dismissed.

It is now urged that the court erred to the prejudice of plaintiff in reforming the entry and providing that the cause should proceed upon the cross-petition, because, among other reasons, plaintiff had no notice of the application to reform. It is obvious that under the circumstances it would have been appropriate to have given due notice both on the original motion to dismiss the cause and upon the subsequent application to modify plaintiff's entry to dismissal.

It is difficult for this court to believe that experienced counsel in this case should not have recognized the obligation in both instances to give notice to opposing counsel of the orders which the court was requested to make. Counsel for plaintiff must have known that there would be objection to an entry dismissing not only the petition but the cross-petition and reply as well, in view of the fact that the issues drawn had been, in part, heard. The fact that counsel for plaintiff did not see that defendant's counsel was notified did not excuse the failure of counsel for defendant, Gordon, to see to it that plaintiff's counsel was notified on the motion to modify. The situation thus created is well illustrated by the old adage that two wrongs never make a right. We are, however, convinced that eventually the court, after having all counsel present, gave full consideration to the correctness of the entry on defendant's application. We do not have the rule of Common Pleas Court as to notice, which it is insisted was violated by counsel for defendant, Gordon, but we know that there is such a rule. However, a reviewing court will seldom disturb the interpretation of a rule, as made by a member of the court which promulgated it, unless and until it affirmatively appears that a party has been prejudiced by the failure to observe the rule. The action of the court with respect thereto will not be disturbed.

It is obvious that Judge Leach, who afterwards passed upon the application of plaintiff to reconsider the order on the motion of defendant, Gordon, to reform the entry of dismissal, was cognizant of the failure of the attorneys in the case to observe the amenities respecting notice and in his entry on plaintiff's motion to strike the entry of reformation from the files, made what purported to be a temporary order only without prejudice to a reconsideration of the...