Nieves v. Kietlinski

Decision Date13 May 1970
Docket NumberNo. 69-201,69-201
Citation258 N.E.2d 454,22 Ohio St.2d 139
Parties, 51 O.O.2d 216 NIEVES et al., Appellants, v. KIETLINSKI, Appellee.
CourtOhio Supreme Court

Syllabus by the Court

1. Pursuant to the provisions of R.C. 2313.44, which allow 'each party' four peremptory challenges, those litigants who have identical interests are to be considered as one party only, and collectively are entitled to the four challenges allowed 'each party.'

2. Where several plaintiffs voluntarily join in a common petition under the joinder provisions of R.C. 2307.191, predicate each cause of action upon the same statement of facts, employ the same attorneys and allege interests each identical to the other, except as to degree of injury and amount of damages, such plaintiffs constitute only one 'party' under the provisions of R.C. 2313.44, and collectively are entitled to only four peremptory challenges.

This action was instituted in the Common Pleas Court of Lorain County to recover damages for injuries received in a motor vehicle accident. Nine plaintiffs (reduced to eight at trial), who were all occupants of one of the vehicles involved, joined together pursuant to the provisions of R.C. 2307.191 (Ohio's Permissive Joinder Statute) to seek relief from a single defendant, the driver of the other vehicle.

The cause was set for trial by jury, and during the empaneling of the jury the trial court allowed four peremptory challenges to each of the plaintiffs and to the defendant. The plaintiffs exercised 30 peremptory challenges, and the defendant three, although both the trial court and the defendant were under the impression defendant had exercised four.

The jury returned a verdict for each of the plaintiffs and the trial court entered judgment accordingly.

The Court of Appeals reversed.

The cause is here pursuant to the allowance of a motion to certify the record.

Sindell, Sindell, Bourne, Markus, Stern & Spero, John E. Duda, Cleveland, and William M. Barrett, for appellants.

Lucas R. Boyson and Wayne C. Black, Elyria, for appellee.

LEACH, Justice.

The important question before this court is whether the trial court erred to the prejudice of the defendant and allowed plaintiffs a number of peremptory challenges to which they were not entitled by law.

The controlling statute is R.C. 2313.44, which provides:

'In addition to the challenges for cause under sections 2313.42 and 2313.43 of the Revised Code, each party peremptorily may challenge four jurors.' (Emphasis added.)

If the word 'party,' as used in that statute, means each person who is a litigant in the action, the proper number of peremptory challenges allowable in a civil action is four times the number of persons who are litigants. On the other hand, if the word 'party' includes all persons who are litigants in the action whose interests in the outcome of the action are the same, the proper number of peremptory challenges may vary from case to case.

We are convinced that not only is the latter interpretation the better view, but that such view has been followed by our lower courts since peremptory challenges first came into use in civil actions in this state.

Apparently the right to exercise peremptory challenges in civil actions did not exist at common law. 47 American Jurisprudence 2d 826, Jury, Section 239; 50 C.J.S. 1069, Juries § 280. It is not too surprising, then, that Ohio's first act pertaining to juries, passed in 1816 (14 Ohio Laws 387), did not allow such a right. However, a second act, passed in 1824 (22 Ohio Laws 95), did. The original language used by the General Assembly to establish the right was that 'each party may peremptorily challenge two jurors.' (22 Ohio Laws 95, 98.) In the 146 years that have elapsed since the creation of this right the General Assembly has seen fit to reverse the order of the words 'may' and 'peremptorily' (114 Ohio Laws 193, 208), and to increase the number of challenges allowable to 'four' instead of 'two' (95 Ohio Laws 308), but the word 'party' has never been changed or qualified by legislative fiat. This provision became a part of R.S. 5177, G.C. 11439, G.C. 11419-53, and finally R.C. 2313.44.

As early as 1890, in the case of Moore & Co. v. Bricklayers' Union, 23 Wkly.Law.Bul. 48, 10 Ohio Dec.Reprint 665, the Superior Court of Cincinnati had occasion to consider the meaning of the word 'party,' as used in R.S. 5177. That case involved an action by a plaintiff company against a number of defendants for damages arising from a conspiracy to injure plaintiff's business by frightening away its customers. At page 666 in the opinion Judge Taft stated:

'The first error complained of by defendants is that the court refused to allow the half dozen defendants together to exercise more than two peremptory challenges. Section 5177 provides that 'each party may peremptorily challenge two jurors.' Defendants' counsel claims that this entitles each of the defendants to exercise two such challenges. We do not think so. It is true that in a certain sense, each defendant is a party to the suit, but, as used here, we think party means 'side,' and that all the plaintiffs are one party and all the defendants are the other.' The judgment in that case was subsequently affirmed by this court, without opinion (51 Ohio St. 605).

The same question was presented in the case of Gram v. Sampson (1890), 4 Ohio Cir.Ct.R. 490, 2 Ohio Cir.Dec. 666, where a single plaintiff brought an action for false imprisonment against four defendants. In the opinion in that case Judge Stewart observed that the usual and ordinary meaning of the word 'party' was, within the context of a civil action, 'he or they, by or against whom a suit is brought.' He then noted that the Legislature had used the terms 'each person' or 'each defendant,' rather than 'each party,' in those statutes providing for the right of peremptory challenges in criminal actions, and thus concluded that the Legislature intended a different rule to apply in civil and criminal cases.

At page 492 in the opinion it is stated:

'* * * Thus construing the words used in the statute in their ordinary and as well in their legal sense, and giving effect to the statute in accordance with the manifest intention of the legislature, it seems clear to us that where, as in this case, several defendants are sued as jointly liable, if they make the same defense, although pleading and appearing at the trial by separate counsel, they must be treated as one party, and are not each entitled to two peremptory challenges; nor are they entitled to two peremptory challenges for each separate answer filed. This view is supported by a long line of authorities in other states. Bibb v. Reid, 3 Ala. 88; Snodgrass v. Hunt, 15 Ind. 274; Blackburn v. Hays, 4 Coldw. (44 Tenn.), 227; McClay v Worrell, (18 Neb. 44) 24 N.W. 429; Sodousky v. McGee, 4 J. J. Marsh, (27 Ky.) 267; Stone v. Segur, 11 Allen, (93 Mass. 4) 568; Schmidt v. R'y Co., 83 Ill. 405; Thompson & Merriam on Juries, Section 163.'

Judge Stewart was careful to note, near the end of his opinion, that several litigants on the same side of a civil action could have interests antagonistic to one another, in which event they might each become a 'party' within the context of the statute and separately be entitled to a full number of peremptory challenges, but he reserved that question for a future case.

Christoff v. Dugan (1931), 39 Ohio App. 475, 177 N.E. 895, is such a case. Dugan was decided after the language at issue in the present case had become a part of G.C. 11439. The full import of that decision is contained in the syllabus:

'1. Generally, 'each party' allowed peremptory challenges by statute refers to each side, regardless of number of litigants, where interests of parties are essentially the same (Gen.Code § 11439).

'2. Peremptory challenges allowed 'each party' by statute should be given to each litigant if their interests are essentially different (Gen.Code § 11439).

'3. Defendant sued for gambling debt, and owner of property sued for amount of recovery because knowingly permitting gambling, had different defenses and were entitled to four peremptory challenges each (Gen.Code § 11439).'

A later case which accords with Dugan is Chakeres v. Merchants and Mechanics Federal Savings & Loan Assn. (1962), 117 Ohio...

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    • December 20, 2010 considered a single party for the purposes ofdetermining the proper number of peremptory challenges. See Nieves v. Kietlinski (1970), 22 Ohio St.2d 139, 258 N.E.2d 454. However, in cases where each defendant files separate replies and defenses; each is represented by its own counsel; eac......
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