Wolf v. Marshall

CourtUnited States State Supreme Court of Ohio
Citation165 N.E. 848,120 Ohio St. 216
Docket NumberNo. 21321.,21321.
PartiesWOLF et al. v. MARSHALL et al.
Decision Date27 March 1929

120 Ohio St. 216
165 N.E. 848

WOLF et al.

No. 21321.

Supreme Court of Ohio.

March 27, 1929.

Error to Court of Appeals, Montgomery County.

Action by L. T. Marshall and others against Wilbur E. Wolf and others. Judgment for plaintiffs was affirmed by the Court of Appeals, and defendants bring error. Reversed and remanded.-[By Editorial Staff.]

Matthias, Day, and Allen, JJ., dissenting.

(Syllabus by the Court.)

Section 1687, 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.

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.

[Ohio St. 216]H. E. Kreitzer, of Dayton, for plaintiffs in error.

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


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 [Ohio St. 217]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

[165 N.E. 849]

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.

[Ohio St. 218]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...

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17 cases
  • State v. Mays
    • United States
    • United States Court of Appeals (Ohio)
    • 11 d4 Janeiro d4 1996
    ...... This rule was first set forth by the Supreme Court in the case of Wolf v. Marshall (1929), 120 Ohio St. 216 [165 N.E. 848]. * * * .         "In the Wolf case the trial judge held that the affidavit of prejudice ......
  • Cuyahoga County Bd. of Mental Retardation v. Association of Cuyahoga County Teachers of Trainable Retarded
    • United States
    • United States Court of Appeals (Ohio)
    • 11 d4 Dezembro d4 1975
    ...... This rule was first set forth by the Supreme Court in the case of Wolf v. Barshall (1929), 120 Ohio St. 216, 165 N.E. 848. At the time of the Wolf decision the statutory procedures were such that said statutes could be ...Marshall, supra. Even if this were not binding authority upon us, we would readily adopt such a rule since it follows the admonition of Canon 2 of the Code ......
  • State v. David W. Mays, Iii [67262], Phyllis Hailey [67291], 95-LW-5340
    • United States
    • United States Court of Appeals (Ohio)
    • 20 d3 Dezembro d3 1995
    ...... Chief Justice of the Supreme Court. This rule was first set. forth by the Supreme Court in the case of Wolf v. Marshall , 120 Ohio St. 216 (1929). ***. . . In the Wolf case the trial judge held that the. affidavit of prejudice ......
  • State, ex rel. Lomaz v. Court of Common Pleas of Portage County
    • United States
    • United States State Supreme Court of Ohio
    • 4 d3 Maio d3 1988
    ......Bd. of Mental Retardation v. Assn. of Cuyahoga Cty. Teachers (1975), 47 Ohio App.2d 28, 1 O.O.3d 168, 351 N.E.2d 777; and Wolf v. Marshall (1929), 120 Ohio St. 216, 165 N.E. 848. Generally, those cases prohibit a judge from determining a cause or hearing any matter that ......
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