Wolf v. Marshall

• Decision Date: 27 March 1929
• Docket Number: 21321
• Citation: 120 Ohio St. 216,165 N.E. 848
• Parties: Wolf Et Al. v. Marshall Et Al.
• Court: Ohio Supreme Court

165 N.E. 848

120 Ohio St. 216

Wolf Et Al. v. Marshall Et Al.

No. 21321

Supreme Court of Ohio

March 27, 1929

Common pleas courts - Affidavit of prejudice need not be filed three days before trial, when - Section 1657, General Code - Prejudicial error for judge to disregard affidavit, when.

1.

Section 1657, General Code, does not require the filing of an affidavit of prejudice at least three days before the time of trial in cases where it is impossible to identify the judge before whom the case is to be tried at least three days before the trial.

2.

In such cases, if the affidavit be filed at the earliest moment when counsel can know who the trial judge is to be, and before the beginning of the trial, it is the duty of the trial judge to be governed by the affidavit of prejudice so filed in all respects the same as if it had been filed at least three days prior to the day of trial, and to disregard such affidavit of prejudice and proceed with the trial constitutes prejudicial error.

The facts are stated in the opinion.

Mr. H E. Kreitzer, for plaintiffs in error.

Messrs McMahon, Corwin, Landis & Markham, and Messrs. Marshall & Marshall, for defendants in error.

KINKADE J.

This is an action to recover for professional services rendered. The jury returned a verdict against the plaintiffs in error here for the full amount claimed. A motion for new trial was overruled, and judgment entered on the verdict. The Court of Appeals affirmed the judgment of the trial court. The plaintiffs in error prosecute error to this court.

When the case was called for trial in the common pleas court, the defendants presented an affidavit of prejudice against the trial judge, which had been filed that day, and asked that the case be assigned for hearing before some other judge. The trial judge announced that he would disregard the affidavit of prejudice for the reason that the same had not been filed at least three days before the day of trial. The defendants met this position of the court by informing the court that the case had first been assigned for trial before another judge, who was not prejudiced against them, and before whom they would have willingly gone to trial, but that they had been first informed that the case had been reassigned for trial before the judge then present less than twenty-four hours before the time the case had been called for trial; that as soon as they learned of this situation, they endeavored to have the judge then present stand aside and permit the reassignment of the case before some other judge, but that their efforts in this respect were of no avail, and thereupon they took the only course open to them by filing the affidavit of prejudice on the day of the trial. Notwithstanding this explanation, the truth of which was not disputed, the trial judge disregarded the affidavit of prejudice and ordered the parties plaintiff and defendant, over the objections of the defendants, to proceed with the case. Whereupon the defendants elected to withdraw from the courtroom and to not participate in the trial in any manner, fearing, no doubt, that if they participated in the trial they might to some extent prejudice their rights by so doing. Judgment was entered in the absence of the defendants.

The sole error relied on here is that arising out of the action of the trial judge with respect to the affidavit of prejudice. The plaintiffs in error insist that the judgment entered in the trial court was a nullity for the reason that the filing of the affidavit of prejudice completely disqualified the judge from sitting in that case, unless and until it should thereafter, upon a hearing of the charges therein made before the Chief Justice of the Supreme Court, be determined that the trial judge was not in fact so prejudiced. The contention of the defendants in error is that the affidavit of prejudice was a nullity for the reason that it was not filed at least three days prior to the trial.

Section 1687, General Code, reads as follows: "When a judge of the common pleas court or of the superior court of Cincinnati is interested in a cause or matter pending before the court in a county of his district, or is related to, or has a bias or prejudice, either for or against, a party to such matter or cause, or to his counsel or is otherwise disqualified to sit in such cause or matter, on the filing of an affidavit of any party to such cause or matter, or of the counsel of any party, setting forth the fact of such interest, bias prejudice or disqualification, the clerk of the court shall enter the fact of the filing of such affidavit on the trial docket in such cause and forthwith notify the chief justice of the supreme court, who shall designate and assign some other judge to take his place. Thereupon the judge so assigned shall proceed and try such matter or cause. The affidavit herein referred to shall be filed not less than three days prior to the time set for the hearing in such...