State v. Shaw.

• Decision Date: 09 June 1885
• Citation: 43 Ohio St. 324,1 N.E. 753
• Parties: STATE v. SHAW.
• Court: Ohio Supreme Court

43 Ohio St. 324

1 N.E. 753

STATE

v.SHAW.

Supreme Court of Ohio.

Filed June 9, 1885.

Mandamus.

This is an action by the state of Ohio, on the relation of Thomas Q. Ashburn, against A. B. Shaw, clerk of the court of common pleas of Clermont county. In the petition the plaintiff avers that a cause is pending in that court wherein one Stephen Fike is plaintiff, and the Cincinnati & Eastern Railway Company and the relator and others are defendants. That in that cause a receiver has been appointed, and a sale of the property of the railway company, and a marshaling of liens and assets, are asked for and resisted, and many issues are contested. That the company is a corporation organized under the laws of Ohio subsequent to April 9, 1852. That the company is insolvent, and its property insufficient to pay its debts, and the statutory liability of its stockholders will, in all probability, be enforced. That Hon. D. W. C. LOUDEN, one of the common pleas judges of the first subdivision, wherein the county of Clermont is situated, has made all the orders, interlocutory and final, in the cause, and all the proceedings in the cause up to that time had been before him. That on April 8, 1885, pursuant to the statute in such case made and provided, there was filed with the defendant in that cause an affidavit which is as follows:

‘Personally appeared before me, a notary public within and for the county and state aforesaid, C. B. Matthews, who, being duly sworn, says in this cause he is counsel for T. Q. Ashburn and R. M. Shoemaker, trustees, parties defendant herein. Affiant further says that D. W. C. LOUDEN, judge of the common pleas court within and for the first subdivision of the Fifth judicial district of Ohio, is interested in this cause, and disqualified to sit herein, by reason of being the owner of shares of the capital stock of the defendant, the Cincinnati & Eastern Railway Company. Affiant further says there is no other judge of the court of common pleas in said subdivision who is not so disqualified; and further affiant saith not.

C. B. MATTHEWS.'

-Which affidavit was duly attested April 6, 1885. That the allegations of the affidavit are true, and D. W. C. LOUDEN is disqualified to sit as judge in the cause, and the matters and things set up in the affidavit first came to the knowledge of the relator or his counsel on April 4, 1885. That after filing the affidavit the relator requested the defendant to transmit the cause to an adjoining county, as required by law, but the defendant refused and still refuses so to do, or to do anything required by law to carry out the request or transmit the cause; and plaintiff prays that a writ of mandamus may issue commanding the defendant to perform the duties imposed upon him by law in the premises.

In his answer the defendant admits the most of the averments of the petition, and that he has wholly refused and still refuses to transmit the cause to an adjoining county, but he ‘denies that D. W. C. LOUDEN is a stockholder in the Cincinnati & Eastern Railway Company, or is interested in any manner or form in the event of the cause, or disqualified to sit therein;’ and he denies that there is no other judge in the subdivision not so disqualified; and he denies that the matters and things in the affidavit first came to the knowledge of the relator on April 4, 1885. And for an additional answer the defendant avers that in the cause pending in the court of common pleas ‘there have been filed the affidavits of William Mansfield and M. Jamieson, who, upon oath, say of their own knowledge that Hon. D. W. C. LOUDEN is not a stockholder in said railway company, nor interested in the event of said cause, nor disqualified to sit therein,’ and ‘that Hon. A. T. COWEN, one of the judges of said court, is not interested in the event of said cause.’

To the defense the plaintiff demurs. The affidavits were filed in this case, and an affidavit of D. W. C. LOUDEN is filed, in which he says a certificate of stock in said railway company was sent to him, and that he ‘did not return it to the company.’

McILVAINE, C. J., and OWEN, J., dissent.[Ohio St. 326]C. B. Matthews, Bellamy Storer, and R. A. Harrison, for plaintiff.

[Ohio St. 328]Ramsey & Matthews, for defendant.

FOLLETT, J.

The relator is a party of record in the case of Stephen Fike against The Cincinnati & Eastern Railway Company and Thomas Q. Ashburn and others. The defendant, A. B. Shaw, is the clerk of the court where that suit was pending, and where relator filed the affidavit of C. B. Matthews, his counsel in that suit, for a change of venue. The statute governing relator's rights, and the defendant's duties as such clerk, is section 550, Rev. St., and is as follows: ‘In every instance where a judge of the court of common pleas is interested in the event of a cause, proceeding, motion, or matter pending before the court in any county of his district, by reason of interest, an affidavit of either party to such cause, proceeding, motion, or matter pending, or his counsel, showing the fact of such interest, the clerk of the court shall enter upon the docket thereof an order directing that the papers and all matters belonging to the cause, motion, proceeding, or matter pending, in which such judge of the court of common pleas * * * is interested, * * * shall be transmitted, * * * if in the court of common pleas, then to the clerk of the court of common pleas of an adjoining county of another subdivision, where practicable, of the same district; where not, then to an adjoining county of another district,’ etc.

When the affidavit is not one ‘showing the fact of such interest’ ‘in the event of a cause, proceeding, motion, or matter pending before the court,’ the clerk is not required to act. State v. Winget, 37 Ohio St. 153. It is not claimed that the affidavit here is defective in form or statement, if the allegations were true; but the defendant[Ohio St. 329]denies the truth of some of the allegations of the affidavit, and thus seeks to justify his refusal to do what is required of him to change the venue. ‘The interest which requires the removal of a cause is a pecuniary interest of the judge in the event or result of the trial.’ State v. Winget, supra, 153. That such an interest should disqualify a judge to act in such a case is fully established. Washington Ins. Co. v. Price, Hopk. Ch. 2; Livermore v. Brundage, 64 Cal. 299;Gregory v. Cleveland, C. & C. R. Co. 4 Ohio St. 675. And when the affidavit of a party or of his counsel shows ‘the fact of such interest,’ has the clerk of the court any judicial or quasi judicial duties in the matter? He has such duties...