State ex rel. Western Ry. Const. Co. v. Rabbitts
| Decision Date | 08 January 1889 |
| Citation | 46 Ohio St. 178,19 N.E. 437 |
| Parties | STATE ex rel. WESTERN RY. CONST. CO. v. RABBITTS. |
| Court | Ohio Supreme Court |
On mandamus .
Syllabus by the Court
The act passed March 19, 1887, (84 Laws, 129,) section 550 Rev. St., was duly adopted by the general assembly, and is a valid law.
The statute relates to the remedy and must be construed in connection with section 79, Rev. St., so that the language therein contained, ‘ that in every instance where a judge of the court of common pleas is interested in the event of a cause * * * pending before the court in any county of his district’ it may, ‘ unless there is a judge residing in the county not so interested,’ be removed to another county, does not, though general in form, and expressed in the present tense, apply to a pending action where the state of facts constituting such ground of removal existed at the adoption of the statute. No generality of language used in an amendment relating to the remedy will under section 79, Rev. St., make it applicable to a pending action, prosecution, or proceeding, to make it so applicable, the intention must be expressed in a provision to that effect.
Alfred Yaple and H. W. Woodrow , for plaintiff.
Richard A. Harrison , for defendant.
The object of this suit is to compel the removal of an action from the county where commenced to an adjoining county of the same subdivision of the judicial district, under the act passed March 19, 1887, amending section 550, Rev. St., (84 Laws, 129.) The action sought to be removed is a suit by a creditor against the stockholders of an insolvent company, the Springfield, Jackson & Pomeroy Railroad Company, which was commenced December 31, 1879, in the court of common pleas of Clark county. On March 28, 1887, the relator, on leave granted by Judge HAWES in an adjacent county, filed an answer and cross-petition as a creditor of the company to a large amount, asking, in its favor and that of all other creditors, to enforce the individual liability of the stockholders; and on April 1, 1887, after filing the affidavit required by the statute, requested the removal of the cause to an adjoining county of the same subdivision, that being, as stated, practicable, on the ground, as stated in the affidavit, that Charles R. White, the judge of the common pleas of the county, is interested in the event of the cause, being one of the stockholders of the company, and there being no other judge in the county not so interested. The clerk, respondent in this action, refused to transmit the the papers as requested, on the grounds, as appears from his answer to the alternative writ, (1) that the act of 1887, amending section 550, Rev. St., did not become a law by reason of certain irregularities in its passage; (2) that, if it did, it does not apply to pending actions; and (3) that the relator was not a party to the suit sought to be removed, the judge granting the leave to file the pleading having as claimed no power to do so, the common pleas in Clark county being at the time in session; and that Judge WHITE, though a subscriber to the stock of the company, was not interested, no certificate of stock having been issued to him.
Of the first and third grounds of defense little need be said. The amendatory act was signed by the presiding officer in each house, and there is nothing appearing upon the journal of either that would warrant us in holding that it did not become a law. State v. Smith , 44 Ohio St. 348, 7 N.E. 447, and 12 N.E. 829. As to the third ground, the suit sought to be removed is necessarily prosecuted for the benefit of all the creditors of the company, and, if leave was improperly granted the relator to become a party, and to answer, the remedy is to move the court in which the action is pending to strike the pleading from the files, and dismiss him from the action.
The second ground does, however, as we think, constitute a defense, and the writ must for such reason be refused. The suit was commenced in 1879, and the facts now relied on as constituting a ground of removal have existed since the time Judge WHITE became a judge of the court of common pleas, which was May 3, 1885. The law then in force, section 550, as amended February 7, 1885, authorized a removal on the ground of a judge of the court of common pleas being interested in the event of a cause pending before the court in his district, only where there was no other judge in the same, that is his, subdivision, not so disqualified. It is not averred in the pleading, nor is it claimed, that such was or has been the case since Judge WHITE entered upon his term. The removal is sought on the ground that Judge WHITE is interested in the event of the cause, and that there is no other judge residing in the county, where the cause is pending not so interested. This is the ground provided by the act of 1887, amending section 550, Rev. St. This act, being an amendatory one, must be construed in connection with section 79, Rev. St., which reads as follows:
The act of 1887, under which the removal is sought unquestionably relates to the remedy, and hence, by reason of this section, cannot be made to apply...
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