Truman v. Walton

• Decision Date: 31 January 1899
• Citation: 53 N.E. 57,59 Ohio St. 517
• Parties: TRUMAN v. WALTON.
• Court: Ohio Supreme Court

53 N.E. 57

59 Ohio St. 517

TRUMAN v. WALTON.

Supreme Court of Ohio.

January 31, 1899

Error to circuit court, Greene county.

Action by one Walton against one Truman. This action was begun in the court of common pleas of Greene county by the defendant in error against plaintiff in error to recover damages for an unauthorized trial and imprisonment of defendant in error. A verdict and judgment were rendered for defendant in error which was affirmed by the circuit court, whereupon proceedings were instituted in this court by plaintiff in error to reverse both judgments. Affirmed.

Syllabus by the Court

Where a person accused of violating a village ordinance has been arrested, brought before the village mayor, the case adjourned for trial to a certain hour of a future day, and the accused, after giving bail for his appearance for trial at the time fixed, is liberated, and fails to appear at the hour fixed for his trial, such mayor is without jurisdiction to proceed with the trial until the accused appears; and should the mayor, in the absence of the accused, proceed to try, convict, and sentence him, such conviction and sentence will be void.

J. E. Hawes, for plaintiff in error.

T. E. Scroggy, for defendant in error.

BRADBURY, J.

The defendant in error filed in the court of common pleas the following petition: ‘Plaintiff says: That the defendant is, and was at the time of the grievances hereinafter complained of, the duly elected, qualified, and acting mayor of the incorporated village of Spring Valley, in the county of Greene. That on the 30th day of May, 1895, at said village, said defendant, as such mayor, issued a warrant for the arrest of plaintiff, and caused him to be arrested, for the pretended violation or an ordinance of said village, and deprived him of his liberty for the space of * * * hours, on a pretended charge of disorderly conduct; and thereafter, and on said day, plaintiff, in order to secure his liberty, was compelled by defendant to enter into a recognizance for his appearance before said defendant to answer to said pretened charge on the 8th day of June, 1895, to which time the trial of said pretended charge was adjourned by said defendant. On said 8th day of June, 1895, at the time to which the trial of said pretended charge had been adjourned, plaintiff appeared before said defendant to answer to said pretended charge, and for a trial thereof, when the defendant again adjourned such trial to the 10th day of June, 1895, at 6 o'clock p. m On said 10th day of June, 1895, at the time to which the trial of said pretended charge had been adjourned, said defendant, as such mayor, in the absence of plaintiff examined divers witnesses under oath, and had a pretended trial before him of said pretended charge, adjudged the defendant guilty of the facts stated therein, and assessed a fine and the costs of said proceedings, amounting to $10.95, against plaintiff, all of which took place without the presence of the plaintiff, or an opportunity given him to testify in his own behalf cross-examine the witnesses against him, or to offer the testimony of witnesses in his favor. Plaintiff appeared before defendant on said 10th day of June, 1895, as nearly the hour fixed for the trial of said pretended charge as it was practicable for him to do, and demanded of defendant a trial of said pretended charge, and an opportunity to testify and to offer testimony in his behalf; but the defendant refused to comply with said demand, and, upon the refusal of plaintiff to pay the fine and the costs as aforesaid assessed against him, the defendant unlawfully, wrongfully, forcibly and maliciously caused plaintiff to be imprisoned in the prison of said village and there kept during the night of the said 10th of June 1895, and until the 11th day of June, 1895, without sleep, and without a suitable bed on which to sleep, and refused to release plaintiff from said imprisonment until the payment of said fine and costs were secured. The whole of said proceedings by defendant against plaintiff were unlawful, wanton, and malicious, and have greatly distressed and humiliated plaintiff, and injured him in his good name and character, and by reason of the premises plaintiff has been damaged in the sum of five thousand dollars. Wherefore the plaintiff prays judgment against said defendant in the sum of $5,000, his damages so as aforesaid sustained.’ A demurrer to this petition was interposed and overruled, and exception to the ruling noted. The defendant then filed an answer, upon which trial was had in the court of common pleas, resulting in a verdict for the plaintiff below for $525. The defendant below interposed a motion for a new trial, based on a number of distinct grounds, one of which was that the verdict was excessive. The court of common pleas, being of the opinion that this ground was well taken, required the plaintiff below to remit $225 thereof. This sum being remitted, the motion for a new trial was overruled and a judgment rendered for $300, which, on error, the circuit court affirmed, whereupon the defendant below brought the case to this court to obtain a reversal of the judgments of both courts.

A bill of exceptions not having been filed in this court, no question that arose on the trial is presented for our consideration, and our inquiry is limited to a consideration of the sufficiency of the petition. The petition shows that the defendant in error, having been on May 30, 1895, arrested for violating an ordinance of the village of Spring Valley, Ohio, was on the same day brought before the plaintiff in error, who was mayor of that village, and gave bond for his appearance before the mayor for trial on the 8th day of June following; that he appeared on that day for trial, when the case was again adjourned until the 10th day of the same month, at 6 o'clock p. m.; that, when the day and hour to which the trial had been last adjourned had arrived, the defendant in error did not appear, whereupon the plaintiff in error, as such mayor, proceeded to try, and did try, and convict him, and adjudged him to pay a fine, all of which was done in his absence, and afterwards, for its nonpayment, caused him to be imprisoned in the village jail. The defendant in error appeared after his trial and conviction were had, and demanded a trial which was denied him. This, however, is not material to the question to be considered now, as it would only affect the question of the amount of damages, and, there being no bill of exceptions, that question is not before the court. If the mayor had jurisdiction to try and convict defendant in error in his absence, the fact that he afterwards refused to open up the judgment, and retry him when he had appeared would not give a right of action, while, on the other hand, if the mayor, in the absence of the defendant in error, was without jurisdiction to proceed with the trial, the judgment was void, and a subsequent imprisonment unlawful, without regard to the action of the mayor in respect to the demand to be retried. The only legitimate effect this refusal to retry the cause could have would be as to the amount of the recovery. The first question, therefore, to be considered, is whether the mayor had jurisdiction to try and convict and assess a fine against, the defendant while he was absent; and, second, if he had not such jurisdiction, was he liable for the injuries that resulted to defendant in error from his unauthorized action?

Counsel for plaintiff in error does not contend that such a trial was authorized by law, but insists that it was not void, but erroneous only, and that, as the conviction might have been reversed on error, it was the only remedy defendant in error had. How the judgment could have been reversed on error was not pointed out by counsel. Nothing appears to show that the record of the trial by the mayor disclosed the absence of the defendant in error. He was not there to take a bill of exceptions showing the fact of his absence. The trial was set for 6 o'clock p....