Murray v. McCrystal

• Decision Date: 15 July 1955
• Citation: Murray v. McCrystal, 134 N.E.2d 88, 99 Ohio App. 441 (Ohio App. 1955)
• Parties: , 59 O.O. 194 MURRAY et al., d/b/a Murray & Murray, Appellants, v. McCRYSTAL, Judge, Appellee.
• Court: Ohio Court of Appeals

Page 441

99 Ohio App. 441

134 N.E.2d 88, 59 O.O. 194

MURRAY et al., d/b/a Murray & Murray, Appellants, v. McCRYSTAL, Judge, Appellee.

Court of Appeals of Ohio, Erie County.

July 15, 1955.

Syllabus by the Court.

1. The purpose of the Declaratory Judgments Act is to provide an immediate remedy for the solution of legal rights where a cause of action has not yet accrued, or where such legal rights exist but must await some act by others or the passing of time before the right of action can be asserted.

2. The Declaratory Judgments Act, Section 2721.01 et seq., Revised Code, does not empower a Probate Court of pass upon the ruling of a Common Pleas Court upon a voir dire examination of a jury and, by declaration, to pass upon the correctness of such ruling on a motion to declare a mistrial, and thereby prescribe rules of procedure and adjudicate questions of law which would bind the trial court upon a subsequent trial of the action.

3. A Probate Court may not, by a declaratory judgment, rule upon the decorum and dignity to be observed by a Common Pleas Court upon any future hearing of a cause in the Common Pleas Court.

4. A motion lies to strike a petition on the ground that it is entirely frivolous, especially where it is not susceptible to amendment which would constitute a cause of action.

Murray & Murray, Sandusky, for appellants.

William E. Didelius, Sandusky, for appellee.

MIDDLETON, Judge.

This is an appeal from a judgment of the Probate Court of Erie County, dismissing plaintiffs' petition for a declaratory judgment. The petition was dismissed on motion of the defendant to strike for the reason that the petition was a frivolous pleading. From that judgment, an appeal is taken to this court.

Plaintiffs set out in their petition for a declaratory judgment that they are attorneys at law duly admitted to practice in the state of Ohio and are now engaged in the practice of law in the city of Sandusky, Ohio; and that under date of September 23, 1953, they filed a cause of action in the Common Pleas Court of Erie County, Ohio, known as Fred A. Murphy v. Fred J. Soliday, and that on January 31, 1955, the matter came on for hearing in the Common Pleas Court before Judge James L. McCrystal.

Plaintiffs say that during the voir dire, and while Thomas Murray was conducting the voir dire, he made a statement to the jury, in substance, as follows:

'Ladies and gentlemen of the jury, I believe the facts in this case will reveal that Fred J. Soliday on the day in question, June 11, 1953, was associated with the American Insurance Company (or, the correct name may be, the American Associated Insurance Companies) and that he was attending a convention at Cedar Point which, I believe, was a convention being held by the United Commercial Travelers.'

Plaintiffs say further that there was an objection entered by counsel for the defendant, and a motion made for a mistrial, based upon the objection; that Judge McCrystal sustained the motion of the defendant (Soliday) and ordered a mistrial; that upon retrial their client will be faced with the same procedural question of whether it is error to make a statement to the jury relative to the occupation of the defendant in the manner and method in which it was made, and upon which the court ruled; that this and related questions are likely to occur again; and that it is to their interest as practicing lawyers and to the interest of other practicing lawyers that a determination of the following questions be made by this court:

1. Where the defendant is an insurance broker and counsel for the plaintiff has knowledge of this fact, is there any impropriety and, if there is any impropriety, is it improper to the extent that it constitutes prejudicial error, for counsel for the plaintiff, in the voir dire, to make a statement to the effect that the defendant is associated with a particular insurance company and has his office in a particular building which happens to be the office building of the insurance company?

2. If counsel for the plaintiff has knowledge that a defendant in any case is an insurance broker, is there any impropriety and, if there is any impropriety, is it improper to the extent that it constitutes prejudicial error, for counsel to tell the jury that said defendant on the day in question, being the date of the accident, was in attendance at an insurance convention, this being a fact?

3. If counsel for the plaintiff, having knowledge that the defendant is an insurance broker for a given insurance company and occupies an office in the office building of said insurance company in a given city, during the voir dire so states these facts to the jury, is the common pleas judge justified in publicly declaring this statement made by counsel as misconduct by giving to both the radio reporter and the newspaper reporter a statement that the conduct of one of counsel for the plaintiff, in referring to the defendant as associated with a particular insurance company, constituted misconduct?

4. If this court should find that the common pleas judge was correct in his finding that the statement by one of plaintiff's counsel that the defendant was associated with an insurance company, such fact being true, constituted misconduct, would the common pleas judge be acting with proper decorum in advising both the newspaper and the radio reporter that the mistrial was declared 'because of misconduct' of one of plaintiff's counsel, naming him, and that they were to publish this fact strictly in the context as given by the court?

5. If counsel for the plaintiff, having knowledge of the fact that a given defendant is an insurance broker and associated with a certain insurance company and has his address at the building of said insurance company, so states to the jury, and if said conduct constitutes prejudicial error, does the common pleas judge who presides in said case have authority to or does he act with proper decorum and dignity when, before the determination of a mistrial is properly journalized or a hearing had upon a journal entry covering such fact situation, he gives to the newspaper and the radio station instructions to carry over the air and in the newspaper the fact that one of plaintiff's counsel was guilty of misconduct and that they were to publish this fact strictly in the context as given by the court?

Plaintiffs then state that a determination of one or more of the questions raised herein, by way of declaratory judgment, would terminate the uncertainty of Fred Murphy's rights and the rights of any and all other litigants that may arise under like or similar circumstances; and that it, likewise, would affect the professional rights of any and all lawyers actively engaged in the practice of law.

To plaintiffs' petition, defendant filed his motion to strike the petition from the files on the ground that it was frivolous and a sham. On consideration thereof, the Probate Court found that the petition was frivolous and defendant's motion to strike the same from the files was sustained.

Neither of the parties to the action in the Common Pleas Court are parties to the present action. This action is brought by counsel for plaintiff in the action in the Common Pleas Court, against the trial judge.

For their assignments of error, the plaintiffs claim that the judgment of the court is contrary to law and contrary to fact.

This appeal is on questions of law, and at the outset it must be borne in...