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    BIAS AND PREJUDICE AND CONTEMPT PROCEEDINGS.
    [Circuit Court of Sandusky County.]
    James Hunt v. State of Ohio.
    Decided, December 10, 1904.

      Disqualification of Judge — And Means of Obtaining a Qualified Judge —Affidavits of Bias and Prejudice — Facts Constituting Need not be Set Forth — Contempt Proceedings — Statute can not be Modified by Buie of Court — Difficulty of Securing Conviction of Perjury— Filing of Affidavit in Contempt Proceedings riot Contempt Per Se —Violation of Non-Penal Statute or Buie of Court not Contempt, When^-'Other Questions Belating to Contempt Proceedings — Presumption of Innocence — Beviewing Court Confined to the Record.

    1. Section 550, Revised Statutes, sets forth primarily the grounds of disqualification of a judge, and secondarily the • means to be pursued to obtain a judge who is not disqualified, and applies to all the common pleas judges of the state.
    2. The right to file an affidavit of bias and prejudice against a common pleas judge under Section 550 is not limited to cases where all the judges of the subdivision are disqualified; but on the contrary, where sufficient affidavit has been filed against a particular judge, he is thereby disqualified from acting, and another judge of the subdivision must be brought in, unless all such judges are disqualified, in which case judg°« -outside the subdivision may be drawn upon.
    3. Section 550, providing for the disqualification of a judge for bias or prejudice, applies to a contempt proceeding, founded on alleged act of contempt committed under circumstances requiring written charge and trial, although the judge -against whom the affidavit is filed is a judge of the court in which tho contempt is charged to have been committed.
    4. A statute can not be modified in any way by a rule of court; and in so far as such rule conflicts with, or purports to enlarge or restrict the operation of the statute, it is invalid.
    5. The facts constituting bias or prejudice on the part of a common pleas judge are not required to be set forth in an affidavit filed under Section 550; an affidavit setting forth the statutory grounds of disqualification in the language of the statute, is sufficient. Hence, a rule of court requiring that every affidavit filed under said section shall specifically set forth the facts constituting the bias or prejudice of the judge, and further providing that every affidavit not in conformity therewith, shall be stricken from the files, is invalid.
    6. The difficulty or impossibility of securing a conviction for perjury, based upon a false affidavit of bias or prejudice which does not set forth specifically the facts constituting bias or prejudice, is not sufficient to require the courts to construe Section 550 as requiring that such facts be set forth in such an affidavit., The remedy, in such case, is with the Legislature, and not with the courts.
    7. Where the contempt of court charged is not committed in the presence of the judge, nor at a time when court is in session, written charges against the persons so offending must be filed as required by Section 5641; and the overruling of a motion to require such charges to be prepared in writing and filed, is reversible error.
    8. The filing of an affidavit of bias or prejudice against a common pleas judge in a contempt proceeding, under favor of Section 550, is not contempt of court per se.

    9. Where one in good faith is pursuing in an orderly way and inoffensive manner what he supposes to be his rights in a court of justice, he is not guilty of contempt of court if he falls into error and violates either a rule of court or non-penal statute; to constitute contempt in such ease there must be something in the manner of doing the thing charged, or something in the circumstances under which it is done that is disrespectful to the court, or a hindrance to the administration of the-affairs of the court, and the act must also be done willfully and for an illegitimate or improper • purpose.
    10. The mere failure to comply with a statute and rule of court requiring that all affidavits of bias or prejudice filed against a judge shall specifically set forth the facts constituting the bias or prejudice referred to, is not contempt per se.

    11. Bias or prejudice are states of mind; they are not only ultimate facts, but are also primary, elementary, and initial facts, which are not susceptible of a statement specifically showing the facts which constitute them. Hence, a rule of court requiring an affidavit filed under Section 550 to contain such a statement, calls for an impossibility, and is nugatory.
    12. Neither an attorney nor his client, who in good faith believe that a rule of court circumscribes their rights given them by law, are guilty of contempt of court by proceeding under ordinary legal methods and in a respectful manner, to test the validity of such rule.
    13. A reviewing court will not go outside the record to determine whether there is matter, other than that contained in the record, which will support a charge of contempt of court.

      14. Contempt proceedings are quasi criminal in tteir nature, and all the presumptions are in favor of the innocence of the persons charged; and a judge who is considering a contempt proceeding based upon an affidavit of bias or prejudice filed against him in the language of Section 550, under circumstances requiring written charges and trial, can not take into consideration and use as evidence what he may suppose or know personally about the purposes or motives of the defendant, and of which no evidence was produced on the hearing.
    Parker, J.; Hull, J., and Haynes, J., concur.
    This case is numbered 466, and following this ease upon the docket, are the cases of James Hunt v. State of Ohio, 467; Harry E. Garn v. State of Ohio, 468; Harry E. Garn v. State of Ohio, 469; W. S. Bair v. State of Ohio, 470, and S. M. Fronizer v. State of Ohio, 471.
   The cases are all alike in character and grew out of the same transactions, and they were.heard together and will be disposed of together.

They are proceedings in error. Plaintiffs in error were convicted of contempt of court, and they prosecute error in this court from the judgment of conviction.

It appears that in September, 1904, the county commissioners of Sandusky county made their annual report in writing to the court of common pleas of said county, under the provisions of Section 917 (97 O. L., 167-168), and thereupon the court appointed H. C. DeRan and Frank E. Seager to examine the same with the prosecuting attorney. Thereupon, the said DeRan and Seager caused subpmnas to be issued to W. S. Bair and S. M. Fronizer to appear before them and answer such questions as might be put to them relative to the official transactions of the county commissioners. Said persons appeared and were examined and, in the course of their examinations, declined to answer certain questions asked them by said DeRan. This fact was by said examiners reported to the court, Judge Horace S. Buckland presiding. The court thereupon appointed said DeRan and Seager to file and prosecute charges in eon-'tempt against said Bair and Fronizer. Thereupon, said Bair and Fronizer,' aided by their attorneys, James Hunt and Harry E. Garn, prepared and filed in said proceedings, in contempt their affidavits alleging bias and prejudice upon the part of said Judge Buekland, such affidavits being under the provisions and in the language of Section 550 on that subject. JudgQ Buekland sitting as such court disregarded the affidavits, and proceeded, against the objection of Bair and Fronizer, to further hear said charges of contempt, and on the hearing thereof ordered that Bair and Fronizer answer certain of the questions that they had declined to answer. The examiners then completed their examination of the commissioners’ report and filed the same with the county auditor.

It does not appear that any further action was taken or was necessary with respect to the matter of requiring answers by Bair or Fronizer to the questions they had been ordered to answer. In other words, if the court was in error in disregarding the affidavits of prejudice, it does not appear that either Bair or Fronizer have attempted to prosecute error on that account, but they appear to have submitted to the order of the court and to have acquiesced in it.

I should add that in the proceedings against Bair and Fronizer, a great many questions were reported to the court that they were desired to answer, but they were excused by the court from answering most of those questions, and those that the court required them to answer they appear to have after-wards answered.

After hearing said charges of contempt against Bair and Fronizer and making the before mentioned order therein, Judge Buekland, sitting as the court, orally announced in open court that he would require Bair, Fronizer and their attorneys, James Hunt and Harry E. Garn, to appear and show cause why they should not be punished for contempt of court for preparing and filing the affidavits of bias and prejudice in the aforesaid contempt cases of Bair and Fronizer, and appointed H. C. DeRan as attorney to prosecute them for such contempt. Mr. Garn was in court at the time and Mr. Hunt was not. But at the time designatd by the court they all appeared.

Now as to some further proceedings in thé case, I shall read from a journal entry, for the whole matter seems to be fully set forth in a journal entry of the date of November 21, 1904, that being one of the days of the October term of that year:

“The State of Ohio v. W. S. Bair et al. Contempt.
“This day this cause came on to be heard upon the matter of the contempt of Winfield S. Bair in thé filing of an affidavit of prejudice in the proceedings in contempt set out in charges of contempt heretofore filed herein by F. E. Seager and TI. C. DeRan, as attorneys of this court, appointed therefor, and as members of the committee to examine the commissioners’ report. It appearing to the court that W. S. Bair had filed an affidavit of prejudice in the above entitled proceeding, contrary to law and in violation of an order of this court, and that James Hunt had prepared and procured to be made the affidavit as attorney for W. S. Bair, and that Harry E. Garn had filed the same, the court heretofore having ordered a citation to issue requiring the said W. S. Bair and the said James Hunt and Harry E. Garn to appear upon this day, to show cause why they should not be punished for contempt, for the filing and procuring to be filed, and the making of such affidavit. W. S. Bair and James Hunt and Harry E. Garn were present in open court and represented by their attorneys, Hon. E. B. King, C. A. Seiders and Col. J. R. Bartlett.
“The court thereupon appointed IT. C. DeRan to represent the state, and Mr. DeRan being present in court, accepted the appointment.
“Thereupon the defendants, W. S. Bair, James Hunt and Harry E. Garn, by their attorneys, filed a motion to require the court to reduce the'charges in contempt to writing, which motion was overruled by the court, to which ruling the defendants at the time excepted, but the defendants, Bair, Hunt and Garn, are allowed time to prepare answers and-are permitted to be heard and represented by counsel.'

Thereupon the court stated to the defendants the charge of contempt in the following language, to-wit:

“Thé proceedings in which these affidavits were filed are in contempt. There is no such thing as an affidavit of bias and prejudice in such a proceeding, and this fact was known to counsel, and the purpose of filing the affidavit could have been none other than interference with the administration of justice and to affront the court. The affidavits were filed also in violation of a rule of this court. This rule was also known to counsel. The proceeding No. 11248, in which the affidavit was filed, was, in its very nature, personal to the court. To add to an, act of contempt in defiance of the court and its rule, was such misbehavior as is contemplated by Section 5639.
“The fact that only such proceedings as are enumerated in Section 5640, Revised Statutes, require charges in writing, coupled with the well recognized practice on the subject, leads me to the conclusion that this is such a case of misbehavior as may be punished summarily.
“The facts upon which the contempt rests are not such as are contemplated by Sections 5640 and 5641, where there might be an issue of fact and where the court is not familiar with the facts of his own knowledge. The affidavits show that Bair signed the affidavit, and the same is in the handwriting of an attorney, James Hunt; and Harry E. G-arn, an attorney, filed the same.
“It is upon this charge that the persons cited will be, tried, and the court asks them and each of them, to show reason why they should not be punished as for contempt.”

Thereupon the defendants filed answers to the charge of the court, which answers, together with the' charge, were by agreement taken as the facts in the case.'

Of course that statement could apply only to facts stated by the court and in the answers, and not to the court’s opinion upon various matters set forth in the entry. But the fact that these affidavits were filed by Mr. Garn — and that appears to be all that he had to do with it; the fact that they were sworn to by Mr. Bair in the one case and by Mr. Fronizer in the other, and that they were prepared in each case by Mr. Hunt, are not disputed facts in the case.

I continue from the journal entry:

“And thereupon the case coming on further to be heard upon the pleadings, and upon argument of counsel and the evidence, and the court being fully advised in the premises, finds the defendant, W. S. Bair, guilty of contempt of this court in the manner and form charged, and fines the said Bair $75 and the costs of this proceeding and orders that he stand committed until paid, and the said Bair is remanded to the custody of the sheriff until the said fine and costs are paid.
“And this ease coming on further to be heard upon the charges against James Hunt, an attorney, and his answer thereto, and the evidence and the arguments of counsel, and the court being fully advised in the premises, finds the said James Hunt guilty of contempt as charged, and orders that he pay a fine of $50 and the costs of this proceeding, and.orders that he stand committed until paid, and the said James Hunt is remanded to the custody of the sheriff until such time as the fine and costs herein specified are paid.”

The same finding in substance appears against Harry ,E. Garn, and his fine is fixed at $10.

Motion for a new trial was filed by all of the parties, which was overruled, and sentence was suspended in order that parties might proceed in this court. And afterward, by the filing of petitions in error, the cases were brought here.

I have read the entry in the case of the State of Ohio v. Bair. The entry in the case of the State of Ohio v. Fronizer is substantially the same, the name of Fronizer being substituted for that of Bair.

A bill of exceptions was taken in each case. It appears therefrom that there was no oral evidence or other evidence than that mentioned.

The fact that these affidavits of prejudice were filed when the court was not in session is alleged in the answer of Garn, and was taken (according to this journal entry) as one of the facts in the case. The fact does not clearly appear from the appearance docket, but it being accepted 'as true as stated by Mr. Gam, that is sufficient. It does appear from the appearance docket that the affidavits were filed- upon Monday morning. At just what hour does not appear.

Now the bill of exceptions is very short, and I desire to read somewhat from it.

“Be it remembered that at the October Term, A. D. 1904, of the court -of common pleas for said county, and on November 21, 1904, came the above named parties and their attorneys, and said cause came on to be heard, and upon said hearing and trial thereof, the following evidence was introduced:

“A copy -of the rule and order and journal entry thereof, made in said court at its April Term, 1904, by Hon. Julian H. Tyler, one of the judges thereof, which is attached hereto and marked ‘Plaintiff’s Exhibit A,’ as a part hereof.'
“The original application or motion -presented to this court in the above entitled case, on October 15, 1904, by F. E. Seager and H. C. DeRan, a copy of which is hereto attached, marked ‘Exhibit B,’ as a part hereof.

[That refers to the application or motion presented by the examiners to the court, asking to have them cited for contempt for not answering certain questions].

“The affidavit of the above named S. M. Fronizer, filed in the above entitled ease on October 17, 1904, a copy of which is hereto attached, marked ‘Exhibit C,’ as a part hereof.'

[That is the affidavit of prejudice].

“The answers of the said S. M. Fronizer, James Hunt and H. E. Garn, filed1 in this contempt proceeding, copies of which are hereto attached, marked Exhibits ‘D,’ ‘E’ and ‘F,’ as. a part hereof.

“And there being no other or further evidence in said case offered by either party or given, the court proceeded to render judgment as is otherwise shown in the record hereof.”

The bills of exceptions in the two cases, the State of Ohio v. Fronizer and the State of Ohio v. Bair, are the same in substance, the difference being simply-one of names.

Now the rule referred to, and which has been a matter very much discussed in this case, appears upon the journal of the court of common pleas, and a copy is set forth in this bill of exceptions, and it reads as follows:

“In the matter of the adopting of a rule of court.
“It is hereby ordered by the court that every affidavit filed under Revised Statutes 550 of this state shall specifically set forth the facts constituting the interest or relation or bias, or prejudice or other disqualification of the judge of this court, and that every such affidavit not in conformity herewith shall be stricken from the files.
“Fremont, Ohio, April 15, 1904.
“Julian H. Tyler, Judge.”

Judge Tyler was one of the seven common pleas judges of this subdivision of this common pleas judicial district.

I wish now to call attention to the affidavit of Mr. Fronizer, which is in form the same as that of Mr. Bair:

“The State of Ohio, plaintiff, v. S. M. Fronizer, defendant. Affidavit.
“State of Ohio, Sandusky county, ss. ■
“S. M. Fronizer, being first duly sworn, on oath says there is now pending before the Sandusky County Common Pleas Court the above entitled cause and matter numbered 11,249, wherein this affiant is defendant and wherein this affiant is charged with contempt of this court because of his alleged refusal to answer certain questions put to him by the persons heretofore appointed by said court to investigate and examine the annual report of the county commissioners of said county for the year ending September, 1904; that the Hon. Horace S. Buckland is one of the judges of said court of common pleas, in which the said • cause and matter is pending, and the said Horace S. Buckland has a bias and prejudice against this affiant in said cause and matter, and is therefore and by reason thereof disqualified to sit in said cause and matter.
“This affidavit is made under Section 550, Revised Statutes.”

This affidavit is signed by Mr. Fronizer, and sworn to before the clerk of the court.

The answer of Mr. Fronizer to the oral charge of contempt, which is the same as that of Mr. Bair, reads:

“Now comes S. M. Fronizer, and for answer to the charge of contempt against him, says he disclaims any purpose or intention on his part of committing any act of contempt toward said court or any judge thereof in signing, swearing to, or filing the affidavit in case No. 11,249 in this court, but that he filed said affidavit in good faith, believing himself entitled to the rights and privileges provided for by Revised Statutes 550, by simply setting forth the grounds in the words of the statutes. ’ ’

This answer is verified by him and is signed on his behalf by his attorneys.

The answer of James Hunt reads:

“Now comes the said James Hunt, and for answer to the said charge, says he disclaims any purpose or intention on his part of committing any act of contempt toward said court or any judge thereof, in writing at his office the affidavit signed by S. M. Fronizer and filed October 17, 1904, in case No. 11,249 in this court.
“And further says that he disclaims any knowledge, information or belief that the filing of said' affidavit in said case was not authorized' by law, or that the same was in violation of any valid rule of this court.”

This is verified by him and is signed on his behalf by his attorneys.

The answer of Mr. Garn reads:

“Now comes the said1 H. E. Garn, and for answer to the said charge, says he disclaims any purpose or intention on his part of committing any act of contempt toward said court or any judge thereof in accompanying his client, on taking the affidavit to be signed by said S. M. Fronizer, to the office of the clerk of said court, on October 17, 1904, and while said court was not in session, in case No. 11,249 in said court.
“And further says that he disclaims any knowledge, information or belief that the filing of said affidavit in said case was not authorized by law, or that the same was in violation of any valid rule of this court.”

This is verified by Garn and signed on his behalf by his attorneys.

Now it will be observed that the court of common pleas was of the opinion that the statute providing for affidavits of prejudice against common pleas judges did not apply to the proceedings then pending, because those proceedings were themselyes contempt proceedings, and he says that therefore the filing of such affidavits could have no other purpose than to affront the court and hinder it in the administration of justice, and that, therefore, the parties filing the affidavits are guilty of contempt of court. And this conclusion is based, I take it, upon the assumption that they knew that the affidavits of prejudice were not pertinent or proper in proceedings of that character.

And the second branch of the court’s oral charge, as we understand it, was that they were guilty of contempt in violating this rule which had been promulgated by Judge Tyler. It is also insisted here upon behalf of the state that Section 550 does not apply to any case where a judge in a subdivision having more than one judge is to be disqualified, unless the circumstances are such that an affidavit may be filed disqualifying all of the judges of that subdivision.

With respect to that point, we have carefully read and considered the opinion of Judge. Summers, now of the Supreme Court, in Barclay v. Salmon, 17 C. C., 152. Without reading from Ms opinion or entering upon any further discussion of the matter, we simply say we are satisfied with Ms reasoning and Ms analysis of the statute and. Ms conclusion as to that matter, It would certainly be a very strange and absurd state of affairs if a state of fact would disqualify a judge from sitting provided another judge in the subdivision was disqualified in like manner or for like cause, whereas the judge would not be disqualified unless such other' judge was also likewise disqualified; and it would certainly be very strange and absurd if the sole judge in a subdivision might be disqualified under this statute for certain causes or reasons, whereas if there were more than- one judge in a subdivision, one might not be so disqualified unless all were likewise disqualified. Clearly no good reason can be found for such distinctions.

Our view of this statute is, that it sets forth primarily the grounds of disqualification, and secondarily the means to be pursued to obtain a judge who is not disqualified, and that it applies to all common pleas judges of the state. It is true that the meaning of some of the language which prescribes the course to be pursued is not entirely clear. "What Judge Summers has said tends to clarify it very much, and, as I have said, we think Ms solution of the matter is correct. But whether so or not, whether the means provided are simple or clear or practicable or not, is a matter of not so much consequence, if as a matter of fact those things which are set forth as matters of disqualification are properly set forth so as to disqualify.

Even if it is not necessary or practicable, where there is a judge of the subdivision not disqualified, to proceed under that provision of the statute which requires the clerk to certify the matter to the presiding or supervising judge, still we hold that the affidavit of disqualification of one of the judges of that subdivision prevents him from acting in the case, and that some proper course should be taken — and it would not be difficult to pursue a reasonable and orderly course — to bring in a judge who is not thus disqualified. It seems to be intended that another judge of the subdivision shall be brought in unless all of the judges of the subdivision are disqualified.

A great many questions have been discussed before us in these cases, and discussed with a very great deal of earnestness, and counsel have manifested, a very great deal of zeal and industry in searching the books for authorities, and a great deal of ability and learning in presenting the authorities to the court, and in arguing the case generally, but, manifestly, time will not permit a review by us this morning of all these cases that have been cited as authorities, nor a discussion of all the points that have been mentioned. Neither do we deem it necessary.

These plaintiffs in error have been convicted of contempt of • court, and when this court has gone far enough to determine whether those convictions should be affirmed or reversed, it has gone as far as it need go, perhaps as far as it may properly go; and though we may be wrong on some of the questions that we shall mention, yet we are entirely confident that we have arrived at correct conclusions upon the material and essential questions presented by these records.

Another question mooted is whether this rule of court, which I have read, is valid. We conclude that a statute may not be modified in any way by a rule of court; that a rule of court in so far as it purports to enlarge or to restrict a statute in its operation, is necessarily invalid. Of course a judge of the court of common pleas can not repeal or amend a statute of the state. He is bound by the statutes as fully as is the humblest citizen of the state. In cases where a statute contains a provision that is to be supplemented by a rule of court, and in cases where there is no statute on the subject and a rule of procedure is necessary or expedient, it is proper and it is- usual to make a rule of court covering the matter. But the rule must not conflict with a statute.

Upon this proposition I shall read from a single authority. Knickerbocker Ins. Co. v. Tolman, 80 Ill., 106. I do not see it here, but I will read from the opinion of the court in the case of State v. Shaw, 43 Ohio St., 324, 330, where Section 550 was being discussed and where what I shall read is quoted with approval from the case of Knickerbocker Ins. Co. v. Tolman, supra.

“ ‘The fact that the party seeking the change may have no merits does not change the rule. The right to a change, upon complying with the statute, is secured to him by an express provision of the statute, and the courts have no power to repeal, modify or mitigate any requirement of the statute.’ Mr. Justice Walker said: ‘Inasmuch as the granting of a change of venue in civil cases is not discretionary, the court below erred in not allowing the motion. This is the requirement of the statute, and such has been the uniform construction given to it.’ ”

That was said of a statute of the state of Illinois of like character with Section 550. Since I have the book in my hand, I will read a part of the syllabus in the case of The State v. Shaw, supra, though it is not pertinent to the point I am discussing, but applies to a point to be considered later:

“Where, under Section 550, Revised Statutes, the required affidavit for a change of venue is filed with the clerk of the court of common pleas, the dutes of the clerk in regard to such a change of venue are ministerial, and not judicial.
“When a party complies with the requirements of Section 550, for a change of venue, and the affidavit shows the fact' of the interest of the judge of 'the court in the event of the cause, proceeding, motion or matter pending before the court, the clerk of the court has no discretion in the ease, but he must make the required order and certificate for such a change.”

The remainder of the syllabus is to the effect that if the clerk should fail to act, he may be proceeded against by mandamus.

Upon this point, that the rule may not modify a statute, we cite; Krutz v. Griffith, 68 Ind., 444; Shoemaker v. Smith, 74 Ind., 71; Herbert v. Beathard, 26 Kan., 746; Krutz v. Howard, 70 Ind., 174. And even a statutory rule limiting the right is to be construed liberally in favor of the right. Corpenny v. City of Sedalia, 57 Mo., 88.

I desire to read a few paragraphs from page 176 of Krutz v. Howard, supra. It appears that the question of the disqualification of the judge under a statute similar to ours was under consideration, and that a rule of court on the subject had been adopted. It provided that:

“The affidavit for a change of venue or of trial from the judge shall state that the party is informed and believes that he has a good cause of action or defense; and, if a defendant, in general terms, the character of the defense. The affiant shall likewise state that the application is not made for delay.”

The statutes of that state provide for the adopting by the court of rules of practice for the conducting of business therein, but this particular statute as to disqualifying a judge did not contain the requirements of this rule.

The seventh clause of Section 207 of the statutes is quoted:

' “When either party shall make and file an affidavit of the bias, prejudice or interest of the judge before whom the said cause is pending, the said court shall grant a change of venue.”

The judge delivering the opinion says: “Under this statute this court has frequently decided that, if the affidavit fulfills the requirements of the statute, the duty to grant the change of venue is imperative upon the court,” citing Witter v. Taylor, 7 Ind., 110; Mershon v. State, 44 Ind., 598; Fisk v. Turnpike Co., 54 Ind., 479; Duggins v. State, 66 Ind., 350; Krutz v. Griffith, 68 Ind., 444. And he continues:

“That the affidavit complies with the statute in this case as to the affiant is not questioned. Was it necessary that it should comply with the rule of court? Courts have the power, and it is their duty to adopt rules for conducting the business therein not repugnant to the laws of the state. Is this rule of court repugnant to the láws of the state? We think it is. By the law the party need state only the bias, prejudice or interest of ■ the judge before whom the ease is pending to entitle him to a change of venue. By the rule of court, in addition to one of these, the affiant, being a defendant, is required to state that he is informed and believes that he has a good defense, and in general terms to state,the character of the defense, and also that the application is not made for delay. We do not see what this rule has to do with conducting the business of the court. It does not relate to simplifying or expediting the proceedings, or presenting distinctly the points in issue, or diminishing costs, or in remedying any imperfections that exist in the practice; it simply adds, and is repugnant to the law. The court can not add or take from the law ‘one jot or one tittle.’ It must adjudicate and administer the law as it is. The court erred in overruling the motion for a change of venue.”

It follows from this that unless the statute requires the setting forth of the facts constituting bias and prejudice, etc., the rule is in derogation of the statute and therefore void. This may be stated in another form, i. e., the rule is valid in so far as it is in harmony with the statute, and void in so far as it is not in harmony with the statute; and therefor, since the rule may neither add to nor subtract from' the requirements of the statute, we may as well go to the statute in the first instance and ascertain what need and what need not be stated in the affidavit. And we conclude that the statute does not require the setting forth specially of the facts constituting the bias or prejudice of a judge. The only matter or part of the rule we have to consider in this case-, is that pertaining to bias or prejudice. Whether the rule is valid in -requiring that the relationship shall be set forth specifically, i. e., whether the parties in interest are related remotely dr closely to the judge; whether by consanguinity or by marriage, or in a business way or as members of some church, or society or otherwise, we need not say. And where Ithe specific disqualifications mentioned in the statute are not relied upon, but the judge is to be set aside on account of some other disqualification coming under the general terms of the statute, whether such other grounds of disqualification shall be set forth and stated specifically we need not and do- not say. And upon the proposition, also sustained by the authorities cited, that it is not necessary to go farther than to set forth the statutory grounds of disqualification in the language of the statute, we cite in •addition thereto, State v. Wolfe, 11 C. C., 591; Barclay v. Salmon, 17 C. C., 152; Witter v. Taylor, 7 Ind., 110; State v. Kent, 4 N. Dak., 577 (2 N. W. Rep., 631); Taylor v. Gardiner, 11 R. I., 182; 19 Enc. Pl. & Pr., 219.

Other cases have been cited by counsel that we- -have not had an opportunity to examine. We also cite the case of Cantilion v. Cincinnati, 2 N. P.—N. S. 417. The decision is by 'Judge Smith, of the Superior Court of Cincinnati, and it appears to us to advance very forcible reasons for holding (as is there held) that it is improper to set forth more than the statutory grounds in the language of the statute.

I shall not take time to read what other courts have said upon this subject. "Wt adopt so much of those decisions as hold that the setting forth of the .disqualification of the bias or prejudice in the language of the statute is sufficient.

The courts of some other states passing upon statutes similar to ours express opinions' contrary, to those expressed in the cases upon which we rely. We are -cited to Schmidt v. Mitchell, 101 Ky., 570 (41 S. W. Rep., 929), a decision that follows German Ins. Co. v. Landrum, 88 Ky., 433 (11 S. W. Rep., 367, 592); City of Emporia v. Volmer, 12 Kan., 622; Curtis, Ex parte, 3 Minn., 274.

An examination of the statutes of these states discloses the fact that the facts stated in the affidavit ito disqualify -as grounds thereof, are to be investigated either by the judge against whom the affidavit is filed, or by another, in some instances a judge pro tern; and, where this is so, there seems to be good reasons for holding that the ordinary rules of pleading should be applied to affidavits, and that the primary facts should be stated in issuable form; but where, as in this state, there is to be no inquiry, but the judge is required to step aside upon the statutory ground being stated, and any action to be taken by the clerk of the court or by the presiding judge of the district is merely ministerial, and where a more particular statement of the facts would "make no • difference in the result, we can not discover any valid reason for requiring such particularization. A different rule might have obtained when our statute provided that in case prejudice “should appear” or “should be shown” or “should happen” or “should be made to- appear,” etc. (I quote from recollection and probably not. with accuracy, but I believe according to the sense of some of our earlier statutes upon this subject).

But now the affidavit is not the basis of an inquiry, but it requires action without inquiry, if it meets the requirements of the statute. In that respect it differs radically from affidavits for attachments and other affidavits that may be disproved. State v. Shaw, 43 Ohio St., 324; State v. Wolfe, 11 C. C., 591; Barclay v. Salmon, 17 C. C., 152.

There is another reason why this rule in so far as it applies to bias and prejudice should not be regarded, and why no attempt should be made to comply with it, that it is impossible to comply with it. It may be possible to set forth specifically the facts constituting interest, or the facts constituting, relationship, or some other facts (perhaps most other facts) ' disqualifying a judge, but -how can one state specifically the facts constituting bias or prejudice? Bias or prejudice is a state of mind like love or anger or fear. It is not only an ultimate fact, but it is a primary, elementary and initial fact. It will be observed that the rule does not require that the affidavit shall state wherein or in what respect the judge is prejudiced, nor that the affidavit shall state the evidences or manifestations of such prejudice, or the causes, or the supposed causes thereof, but that the constituent facts of the state of mind called “bias” or “prejudice” shall be stated.

.Well this, as very well said by Judge Follett in his opinion, in State v. Wolfe, supra, to which I have referred, leads us into the realms of metaphysics. There may be some rule or system-, of psychology by which that state of mind may be analyzed and separated into its constituent elements, but it is not apparent to us that it is so. We think it is impossible to do it. We think that the learned judge in adopting this rule, which may be practicable in so far as interest' or relationship and some other grounds of disqualification are concerned, must have lost sight of the fact that the state of mind which we describe as bias or prejudice can not be thus analyzed and set forth.

But if the statute, or the rule, or both, require such specific statement of facts constituting bias or prejudice, and if they may be complied with, a mere failure to comply does not, in our opinion, amount to contempt of court. The failure ’ to observe the statute, or rule, is not contempt of court per se.

A definition of contempt of court — and there are many definitions — but one that we regard as a very good one is quoted in one of the briefs, and if I read the brief correctly, is from. 7 Am. & Eng. Enc. Law (2d Ed.), 27, to-wit:

“In its broad sense a contempt is a disregard of, or disobedience to, the commands of a public authority, legislative 'or judicial, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb its proceedings or impair the respect due to its authority. ’ ’

It will be observed that that definition includes contempts that are direct and in the presence of the court, and that may be punished summarily, and it includes contempts that are not in the presence of the court, that may also be punished by the court if upon inquiry guilt shall be established.

The authorities give many illustrations of what are and what -are not acts of contempt, and they are not in entire harmony, but so far as we have been able to examine, where one is pursuing in an orderly and decent way and in good faith, what he supposes to be his right in a court of justice, he is not guilty of contempt, though he falls into error and violates rules of court and even statutes (not penal) without number; but to constitute contempt in such case, there must be something in the Tna.nnp.T- of -doing the thing, or something in the circumstances under which it is done, that must be disrespectful to the court, or a hindrance to the administration of the affairs of the court, and the -act must be done willfully and for an illegitimate or improper purpose.

An allegation that the petitioners believe the court is prejudiced in favor of the plaintiff, from a ruling of the court made in a former case, is not contempt of court. Le Hane v. State, 48 Neb., 105 (66 N. W. Rep., 1017); Mullin v. People, 15 Colo., 437 (20 Pac. Rep., 880; 22 Am. St. Rep., 414); Thomas v. People, 14 Colo., 254 (23 Pac. Rep., 326).

An attorney moved for a change of venue upon an affidavit stating in the language of the statute, that he could not receive a fair trial because the judge was interested or prejudiced— Reid: Not a contempt of court. Curtis, Ex parte, 3 Minn., 274.

So, too, we say that even though the statute may not apply unless all 'the judges of the subdivision are disqualified, or may not apply to such matter as contempt proceedings, the making of the affidavit is not contempt per se.

There is a dictum which seems to be somewhat contrary to this in the ease of Wallace v. Scoles, 6 Ohio, 428. But we take the remark of the judge there to be one of that character that judges sometimes make without very full consideration, where they are not discussing the precise issue involved; and yet it may be true that an attorney who in violation of a rule of court becomes surety upon an appeal bond, may be punished for contempt. But we think not because of the mere fact of signing as a surety. There must be some circumstance, something in the manner of his doing it, that would make it a contemptuous act upon his part. Manifestly a litigant or his attorney is not to be punished for contempt for a mere mistake.

It is laid down in many cases that disobedience to an invalid rule or order is not contempt of court, and that rule is applicable to the cases at bar, and seems to be so clearly right as to admit of no doubt.

In this case we are bound to say the record does not disclose that any disrespect or affront to the court was contemplated. It is not necessarily disrespectful to the court or the judge to charge the judge with bias or prejudice. We are all biased or prejudiced about various matters and persons we come in contact with and have to deal with. Illustrations of this are not required. This is apparent to all.

It will be remembered that one time we had occasion to settle the question of the title of two claimants of the presidency by a commission of fifteen persons, and the fifteen, were chosen from a great many of the ablest and most exalted and most honorable men of the nation, and a great many of those men were rejected by those who had the choosing of the commissioners, not because they were not personally honest and above reproach, and not on account of anything that was a reproach to them, but because they were prejudiced as public men with respect to certain public questions and policies involved. It often happens that a judge without anybody’s motion 'but his own steps down and out and gives place to another, conceding that he might be prejudiced, and that he is therefore an unfit person to sit in the case; and he does it without shame or occasion for shame or reproach. He confesses simply that he is human and subject to the frailties and imperfections of humanity. A juror may be rejected on account of prejudice or interest, etc., and the best men of the country are set aside on that account daily and they are not disgraced, their motives are not impugned nor their characters or reputations damaged. They go down again into the community and amongst their fellow citizens, and into their families and their various associations, without their reputations having been smirched or impaired in the slightest degree upon that account.

Either the judge in this case has put a wrong construction upon the mere charge of bias or prejudice, or else there was more in the matter than has been brought to our attention by this record. But we must judge by the record.

It is said on behalf of plaintiffs in error that their purpose in not attempting to comply with this rule was to test its validity, and that they were proceeding in a decent and orderly way to dio it. It is said on behalf of the state that in the subsequent proceedings for contempt the purpose of the court was to test .-this rule. Well, these cases before us may test whether under the facts here shown by the record one may be punished for contempt without at all testing the validity of this rule. If, however, in the cases in which the affidavits were filed, parties had been dissatisfied with the decision of the court, and had not been willing to comply with it, and had prosecuted error on account of his ignoring the affidavits, then the validity ■of the rule might have been brought directly in issue. And it seems to us that an attorney ought not to be regarded as in contempt of court, nor his client, ,if they in good faith believe that a rule in some way circumscribes the rights the law gives them and, thus believing, proceed by ordinary legal methods to test its validity. And unless there is something very extraordinary about the case, calling upon the court to invoke this extreme course of proceeding to punish them, we regard contempt proceedings as quite inappropriate. Haines v. Haines, 35 Mich., 138; Weeks v. Smith, 3 Abb. Pr. (N. Y.), 211.

Obviously, an attorney who would refrain from thus proceeding, or who would induce his client to thus refrain, where he was acting in good faith and upon an honest belief that such action was necessary to preserve his client’s interests or to maintain his own rights, an attorney who under such circumstances would.fail to act, through fear of consequences either in the way of disfavor upon the part of the judge or punishment by fine or imprisonment, would and ought to be branded as a craven and a poltroon, and he would be quite unworthy of his high commission as a member of the bar. He would be recreant to the honorable traditions of the bars of England and America, which bodies have always been in the van in every movement and effort to resist the tyrannical exercise of arbitrary power by government or its agents.

On the other hand, parties and attorneys may and doubtless do use this statute illegitimately, as, for instance, for delay merely, to vex and wear out an opponent, or perhaps to try to annoy and humiliate the judge whose qualifications are challenged, and for other improper purposes.

Such misuse o,f the statute generally involves perjury; and therefore it is said that where the primary facts are not set forth, a conviction of perjury may be difficult or impossible, and it is argued that this affords good reason for holding that the statute should be so construed and enforced (by the aid of rules or otherwise) as to require a specific statement of the primary facts constituting the ultimate fact that disqualifies the judge.

While this may be a fair and forcible argument to be addressed to the lawmaking body to persuade it to change the law in this particular (though we do not deem it conclusive, but are persuaded that strong reasons may be advanced for leaving the law so that the bare statement of the ultimate fact shall suffice, one of which reasons is set forth in the opinion of Judge Smith before mentioned), we do not regard- this as a proper test, and certainly it is not a controlling test of the meaning of the law on this point. Though the prevention of a misuse of the law, and especially through perjury, is desirable, it should be borne in mind that the primary object of the law is not the prevention of perjury, but is entirely different; so that the prevention of perjury can not be looked to as the pole star to guide us in its construction.

Though conviction of perjury or subornation of perjury may ■be difficult or even impossible in most cases of such misuse of this law, and proceedings for contempt may not generally be appropriate or effective, yet an attorney can not be guilty of such offense with impunity if the court does its whole duty in the premises; for the statute providing for disbarment or disciplinary punishment of an attorney guilty of unprofessional conduct involving moral turpitude, affords an appropriate and effective means of prevention or punishment. No doubt there have been many and most flagrant and vexatious abuses of this statute, and in some eases parties have been prevailed upon by their attorneys to make oath that the judges were biased and prejudiced against them and their causes, when the judges had no acquaintance with or knowledge of the parties or their causes, and there was no just or valid ground for challenge known to or suspected by attorney or client. Of course such practices are highly reprehensible They are immoral and criminal, and the offenders should be severely dealt with. The judge owes it to himself, his position, the cause of justice, the reputable and honorable members of the bar, and to society generally, to do his utmost to bring such offenders to justice. Happily, the attorneys who are guilty of such practices are comparatively few, but unfortunately their power to do mischief is vastly greater than, and disproportionate to, their general standing at the bar.

In the cases before us, however, we deem it only fair and proper (after finding an absence of evidence in the record of unprofessional conduct preventing us from concluding that the attorneys concerned were guilty of unoonscientious behavior), to add that their known probity and honorable standing as citizens and as lawyers oppose such a conclusion.

I have said enough to indicate that we find and hold, independently of any question about the validity of the rule or the requirements of the statute, that this record does not show affirmatively that there was anything done that amounted to contempt of court. There is nothing in the affidavit that in and of itself is contemptuous. The disavowels — the disclaimers in the answers would have a tendency to purge the parties of any contempt of which they might have been guilty, but those answers being received here as statements of facts, and not being in any ■way disproved or questioned or impeached, they reach farther— they meet and overcome anything smacking of contempt that might be found here by strained construction. Nothing else is shown than is shown by these papers, and we think that in a case like this the judge who was hearing and considering the matter could not properly take into consideration and apply as evidence what he may have supposed or known personally about circumstances and motives, of which no evidence was produced on the hearing.

It is a quasi criminal proceeding. The presumptions are all in favor of the person charged with the offense, i. e., in favor of innocence. It is not a case of the character where a court reviewing the conviction is to assume, in the absence of evidence to the contrary, that the action of the tribunal below was correct and lawful. It is a ease where the guilt of the person convicted must appear affirmatively in the record. The offense is in its character like those set forth in the chapter of the criminal code on offenses against public justice, particularly Revised Statutes, 6907.

The judge hearing this matter was of the opinion that contempt proceedings like those pending against Fronizer and Bair were not matters with respect to which a judge might be disqualified under Section 550 of the statute.

As to that, we think he was in error. We call attention to the statute, division 7 of the code, which contains nineteen chapters, each chapter dealing with a different subject or different form of proceeding. They are all denominated at the heading of the division, “Special Proceedings.” They are, “Amercement, Arbitration, Bastardy, Contempts of Court, Dissolution of Corporations, Divorce and Alimony, Dower, Habeas Corpus, Partition, Real Actions, Replevin, Sureties (Rights and Remedies of), Taxes and Assessments (Relief against), Hlegal to Change Name, to Contest Will, to Cure Certain Defects, Errors and Omissions, to Perpetuate Testimony, Water Craft, Wreck Masters.”

Contempt of court is one of these. It is put in the category with the others as a proceeding of the same general character, or answering to the same general description of “special proceedings. ’ ’ And it seems to us that the argument made is well founded, that if we are to regard Section 550 as not applicable to proceedings for contempt of court, we must regard Section 550 as not applicable to these other special proceedings set forth in the other eighteen chapters of this division, and that that would be absurd I need not stop to argue.

To say'that the charge of contempt is to be investigated by that court only in which the contempt is charged to have been •committed, does not meet the question, for this statute does not provide for the removal of the matter to another court, but only for a change in the personnel of the court — the judge is changed, the court remains the same.

Lamonte v. Ward, 36 Wis., 558, is in point. There, the question was whether a contempt proceeding was a matter within the purview of a statute similar to our statute (Section 550). Our statute uses the term “cause or matter,” and it is insisted by defendant in error that this is not a cause or matter, ik the opinion in that case it is said:

“It is stated in the complaint that the case of Lamonte v. Pierce was commenced in the Milwaukee County Court; that all of the proceedings in the cause until after the alleged contempt was committed by Pierce were had in that court; and •that, pending an -application to punish Pierce for such contempt, the venue was duly changed to the circuit court. It is now claimed, on behalf of the appellants, that such change of venue was without authority of law, and, consequently, that the circuit court never obtained jurisdiction -of the proceeding. The statute provides for the removal from the county to the circuit court of any cause or matter which shall come before the county court or judge, in which the judge- shall be interested, or in which he shall have acted as counsel for any party. Revised Statutes, Ch. 117, Section 59, as amended by Ch. 33, Laws of 1862 (Tay. Statutes, 1323, Section 84). If this proceeding is not a cause within the meaning of the statute, it is certainly a matter, and we have no doubt it is within the intention as well as the letter of the statute.”

But without a decision of any court, we would be unable to come to the conclusion that so broad and comprehensive a descriptive term as the word “matter” would not comprehend or include an inquiry of the character that was pending against Fronizer and Bair. It was a proceeding in which they were parties. It was not ex parte. It was the state upon the one side, and they upon the other, and though not directly criminal, it was a quasi criminal proceeding in which a judgment of fine and imprisonment was -authorized.

We further hold that the charge was not of contempt in the presence of the judge, and therefore written charges should have been filed. And this, under the provisions of Revised Statute 5639, et seq. And we think that the statutes upon the subject are so clear that it is not necessary to seek for further authorities, although with respect to this matter there are expressions of judges and of courts that seem to sustain the views entertained by the judge of the court below. We can not account for those views except upon the theory that the judges were not always quite attentive to the language of the statute.

But that may have been excusable in those cases, because the precise point as to whether written charges should or should not be filed was not involved therein, and was not necessary to be decided; and in most of the eases where expressions of this kind are used, written charges were in fact filed. I can not stop to review those cases. The statute (Section 5639) reads:

“A court, or judge at chambers, may punish summarily a person guilty of misbehavior in the presence of or so near the court or judge as to obstruct the administration of justice.”

And that, we understand,' is not intended to be restrictive of the inherent common law right of the court, but it is sufficiently comprehensive to include all of the power that the courts at common law ever had to punish contempts summarily.

Then Section 5640 reads:

“A person guilty of any of the following acts may be punished as for a contempt:
“1. Disobedience of, or resistance to, a lawful writ, process, order, rule, judgment or command of a court or an officer.
“2. Misbehavior of an officer of the court in the performance of his official duties, or in his official transactions.
“3. A failure to obey a subpoena duly served, or a refusal to be sworn, or to answer as a witness, when lawfully required.
“4. The rescue, or attempted rescue, of a person or of property in the custody of an officer by virtue of an order or process of court held by him.
“5. A failure upon the part of a person recognized to appear as a witness in any court, to appear in compliance with the terms of his recognizance.”

The precise charge against these parties was that they had disobeyed a lawful order and rule of the court, and with respect to proceedings under that section, Section 5641 provides:

“In cases under the last section, a charge in writing shall be filed with the clerk, an entry thereof made upon the journal and an opportunity given to the accused to be heard, by himself or counsel; but this section shall not be so construed as to prevent the court from issuing process to bring the accused party into court, or from holding him in custody, pending such proceedings. ’ ’

In the eases at bar, the affidavits were not prepared, sworn to or filed while court was actually in session, and no overt act was done by any of the accused persons while court was actually in session.

These parties were brought into court without process. They came into court upon being notified orally that the court desired their presence to answer to this charge; but they did not waive formal written charges. By a written motion they asked that such charges be prepared and filed, and this motion was overruled. This was error. Welch v. Barber, 52 Conn., 147, 148 (52 Am. Rep., 567); Lowe v. State, 9 Ohio St., 337; Myers v. State, 46 O. S., 473; Rapalje on Contempt, Section 21.

Our conclusion is that these convictions should be reversed, and they are reversed:

1. Because of error in overruling the motion for written charges, and proceeding with the inquiry to judgment without written charges.

Bartlett & Wilson, E. B. King and C. M. Seiders, for plaintiff in error.

H. G. DeBan, for defendant in error.

2. Because the conviction is not supported by the evidence, and is therefore contrary to law.

And the same judgment will be entered in each of the six eases.


source: Caselaw Access Project

license: Public Domain

text:
    WHAT CONSTITUTES AN INHABITED DWELLING HOUSE.
    [Circuit Court of Hamilton County.]
    William E. Mason et al v. The State of Ohio.
    Decided, March 11, 1905.

      •Criminal Law — Trial for Burglary — Under Section 6835 — Meaning of the Words “Inhabited Dwelling House” — Charge of Court — Recommendation of Mercy.

    1. In a trial under an indictment charging the malicious andi forcible breaking ar entering into an inhabited dwelling house in the night time with intent to commit a felony or with intent to steal property of any value, it is error to charge the jury that a dwelling occupied by a family who were absent in Europe at the time of the alleged burglary and the two servants left in charge were temporarily absent, was an inhabited dwelling house within the meaning of the statute.
    2. Although it is the duty of the court to instruct the jury as to the to do does not constitute prejudicial error where the court is not effect of a recommendation of the prisoner to mercy, a failure so requested to so instruct.
    Jelke, P. J.; Swing, J., and G-iffen, J., concur.
    The plaintiffs in error were indicted and convicted for the burglary of an inhabited dwelling house, and now complain that the court of common pleas erred in its charge to the jury by stating, in substance, that a dwelling house, although not at the time of the burglary occupied by any human being, was nevertheless an inhabited dwelling house within the meaning of the statute.
   That the court erred in charging the jury that they might recommend mercy without also stating the effect of such recommendation.

Section 6835, Revised Statutes, under which the prisoners were indicted, provides as follows:

“Whoever, in the night season, maliciously and forcibly breaks and enters in an inhabited dwelling house with intent to commit a felony or with intent to steal property of any value, shall be imprisoned in the penitentiary during life; but upon recommendation of mercy by the jury, shall be imprisoned not more than thirty years nor less than ten years.”

The object and purpose of imposing a penalty so severe as imprisonment for life manifestly is for the peace, repose and safety of familes in the night season, who are occupying a dwelling house, the forcible breaking of which for felonious purposes during the hours which peaceable and law-abiding people give up to rest, would naturally cause alarm, distress and danger.

At the time of the forcible breaking of the dwelling house in this case, it was occupied by no human being, the owner and his family being absent in Europe, and the two servants left in charge being temporarily away on an errand.

The alarm and danger of the occupants of the dwelling house could not occur for the reason that none was there; but it is suggested that it is the possibility of the dwelling house being occupied at the time or of the occupants returning before the burglar had escaped, which the statute contemplates. But it is a well recognized rule of law that penal statutes are strictly construed. By a liberal construction, a dwelling house may be deemed to be inhabited when one or more human beings are living in it continuously during the night season as well as the day, although the occupants may be absent for a few hours during any particular day, but a strict construction requires us to have regard to the mischief intended to be remedied. The Legislature evidently intended to protect .those dwelling in the house at the time the burglary is committed, and not those who might be there by reason of its being their usual place of abode.

P. S. PhilUps and Wm. Sander, Jr., for plaintiffs in error.

H. M. Bulison, Prosecuting Attorney, and Arthur Mmning, Assistant Prosecuting Attorney, for defendant in error.

This construction of the word “inhabited” was applied in the case of The People v. Butler, 16 Johnson’s Reports, page 202, where the court say:

“By the addition of the word ‘inhabited’ in the first section of the act, the Legislature evidently intended to make a distinction between the act of burning a dwelling house while persons were actually in it at the time, and burning an uninhabited dwelling house. The one offense being punishable with death, and the other with imprisonment.”

In that case, the extreme penalty for the burning of an inhabited dwelling house was imposed, not because of the loss of the building or of the furniture and other contents, but because of the danger to the persons actually in it. So in this case, imprisonment for life is imposed, not because of the breaking of the building or the loss 'of any of its contents, but rather to protect those who are at the time occupying the premises. It is true that afterwards the Legislature of the state of New York amended this statute so as to read: “The dwelling house of another in which there is at the time a human being,” but this seems to have been done for the purpose of making certain, by statute, that which before was uncertain and determined only by judicial construction.

We are of opinion, therefore, that the court erred in its charge to the jury.

Concerning the other alleged error, it is the duty of the court to instruct the jury upon all the questions of law arising before them in the case, but a failure to instruct upon any particular point does not constitute prejudicial error unless the court is requested to so charge. While we think that the jury could not intelligently recommend the prisoners to mercy without knowing the effect of such recommendation, and that it is the duty of the court to so instruct, yet there being no request in this case, it was not error for which the judgment could be reversed. -

Judgment reversed, and cause remanded for new trial.


text:
    NOTICE OF APPEAL IN SUITS PENDING AT THE TIME OF THE AMENDATORY ACT.
    [Circuit Court of Fairfield County.]
    Newton Peters v. George Harman et al.
    Decided, September 23, 1904.

      ‘Appeal — Pending Suits not Affected by Subsequent Legislation Relating Thereto — The Amendatory Act of March 25, 1902.
    1. An appeal is a continuance of the original action, and the right of appeal is not affected by subsequent amendatory legislation unless it is expressly so provided.
    2. The amendatory act of March 25, 1902, requiring a party who desires to appeal his case to the circuit court to file a written notice of his intention so to do within three days after the judgment or order is entered by the trial judge on his docliet, does not apply to actions pending at the time of its passage.
    ' Donahue, J.; Voorhees, J., and McCarty, J., concur.
    Motion to dismiss appeal.
   This case is submitted to us on a motion to dismiss the appeal. The judgment of the court below was entered June 4, 1902, and an appeal was attempted from that judgment. There was no notice filed in writing of an intention to appeal and it is claimed by counsel for the motion that under the statute, as it then read, this was absolutely necessary, and that a failure to file such notice is fatal to the appeal, and the same must be dismissed.

Revised Statutes, Section 5227, was amended March 25, 1902 (95 O. L., 66). In that amendment it is provided that a party desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered on his docket by the trial judge, file a written notice of such intention, and, within thirty days after the entering of such judgment or order by the trial judge, give an undertaking with sufficient surety, to be approved by the clerk of the court or a judge thereof, as hereinafter provided.

This section was amended to read as I have just stated on March 25, 1902, and the decree was entered June 4, 1902, so it is contended by counsel for the motion that this section, as it was amended March 25, 1902, applies.

The original section as it stood before this amendment provided that a party desiring to appeal his cause to the circuit court shall, within three days after the judgment or order is entered, enter on the records notice of such intention, and within thirty days after the entering of such judgment or order on the journal of the court give an undertaking with sufficient surety, to be approved by the clerk or a judge thereof, as hereinafter provided.

With the contention of counsel touching the requirements of the statute, as amended, we are in perfect accord. Under that section, as amended, the filing of a separate notice in writing is absolutely indispensable to perfect the appeal, and the entry that was put upon the journals of the court is not sufficient under the amended statute as it read on June 4, 1902. But it is contended that the original Section 5227, as it read at the time of the bringing of this suit, controls. That is the only question in this ease.

Revised Statutes, Section 79, provides that where a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions or proceedings, unless so expressed; nor shall any repeal or amendment affect causes of such action, prosecution or proceedings existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.

Now if this appeal comes within the provisions of Section 79, then of course the statute as it existed at the time of the commencement of the action would control. If it does not, then Revised Statutes, Section 5227, as amended March 25, 1902, controls.

The entry (after the decree of the court is entered) is as follows :

“Now and here plaintiff gives notice of his intention to appeal this case to the Circuit Court of Fairfied County, Ohio, and the court fixes the amount of the appeal bond at $200.”

That notice is sufficient under the old statute, if the appeal is to be perfected under that statute.

The case in Young v. Shallenberger, 53 Ohio St., 291, seems to cover this question, but it is distinguished in this, that at the time of the passage of the act there in question, the right of action then had already accrued to the plaintiff in error; that is, judgment had been rendered against him and he was entitled to his cause of action as it then existed. It is contended that if judgment had not then been rendered it would have been different; that no rights could have accrued until judgment had been entered and consequently Young v. Shallenberger, supra, is no assistance to us in determining this case.

In Thompson v. Street Bldg. Assn., 13 C. C., 250, the court reviews Revised Statutes, Section 79, at some length; it shows the nature of a petition in error and the difference between a proceeding in error and an appeal, and on page 70 we find this language:

“But an appeal is very different from a proceeding in error, as is shown by the decision of the Supreme Court referred to by Judge Smith in announcing the decision of the general term in that case. The former is a continuance of the original action, and it would be affected by any statute relating to the remedy in such cases, only if it was stated therein that it would affect pending actions.”

This case holds directly that an appeal is a continuance of the original action, that it would not be affected by any statute changing or modifying the laws relating to it, unless it expressly provided that it should do so as required by Revised Statutes, Section 79.

That case is persuasive with us, but we think the case of Travelers Ins. Co. v. Myers, 59 Ohio St., 332, is practically decisive of the question. I read from the syllabus:

“Section 6710, Revised Statutes, as amended April 25, 1898 (93 O. L., 255), does not affect the jurisdiction of this court to review a judgment of a lower court, where the right to prosecute error in this court existed at the time the amendment took effect.”

C. W. McCleery and William Davidson, for plaintiff in error.

M. A. Daugherty, for G. A. Harman.

On page 333 the court say :

“It is evident that if Section 3 had been omitted, the act, being one relating to the remedy, would not have applied to this case; for by Revised Statutes, Section 79, no amendment or repeal relating to the remedy, applies to an existing cause of'action, prosecution or proceeding, unless otherwise expressly provided in the amending or repealing act.”

This amendment that we are now considering (amendment to Revised Statutes, Section 5227) does not provide that it shall apply to pending eases. Therefore from the doctrine in Travelers Ins. Co. v. Myers, supra, it is evident that it can not apply to this case. In other words, this act is an act relating to the remedy, and therefore the law as it existed at the time the action was commenced, instead of the law at the time the judgment was rendered, shall govern. That being true, we think the notice of appeal was properly given and the motion to dismiss the appeal will be overruled.


text:
    SUBSTANTIAL VARIANCE BETWEEN PETITION AND PROOF.
    [Circuit Court of Cuyahoga County.]
    William Hazzard v. John B. Wallace.
    Decided, November 7, 1904.

      Pleading — Variance between Petition and Proof — Refusal of Leave to File Amended Petition not Error, When.

    It is not error to refuse leave to file an amended petition conforming to the facts proved at the trial, where the amended petition offered for filing substantially changes the plaintiff’s claim (Revised Statutes, 5114).
    Winch, J.; Hale, J., and Marvin, J., concur.
    Error to' the court of common pleas.
   Plaintiff filed his petition against defendant in the common pleas court alleging in substance that on a certain day defendant for a valuable consideration agreed to buy of plaintiff thirty shares of stock in a certain corporation and pay therefor $3,000, tender of the stock by plaintiff and refusal of defendant to pay. Further alleging that he at all times has been and still is willing to deliver said stock on payment of said sum, plaintiff asked judgment in the sum of $3,000.

The answer was a general denial, and a jury being waived, the issues thus made were tried to the court. After the introduction of the plaintiff’s evidence the defendant made a motion to arrest the evidence and render judgment for the defendant, and said motion being argued and submitted to the court, the court expressed its opinion that the evidence did not make a case entitling the plaintiff to recover under the allegations of the petition; thereupon the plaintiff requested the court to consider the case upon the evidence as if the petition were 'amended to conform to the facts proved, which application the court then and there allowed; and thereupon the plaintiff applied to the court for leave to amend the petition to conform the same to the facts proved, which application was sustained, and plaintiff submitted to the court an amended petition in the cause, and asked leave of the court to file the same, which application the court refused for the reason, as stated in the journal, “that the same did not in the judgment of the court conform to the facts as proved by the evidence in the ease and for no other reason whatever,” to which refusal plaintiff excepted. Thereupon defendant again moved the court for judgment in his favor, which motion was sustained and judgment for him rendered. Proper exceptions being taken, a bill of exceptions was prepared and the matter brought to this court for review.

Upon the argument here it was conceded by counsel, or at least it clearly appears from the record, that plaintiff upon the evidence adduced by him was not entitled to judgment under his original petition. The amended petition which plaintiff requested leave to file, in substance set forth that, upon the formation of the corporation whose stock is in question, plaintiff was requested to take fifty shares; that defendant being interested in the promotion of the company, plaintiff inquired of defendant if lie would take thirty of said shares from plaintiff •at par if plaintiff took the fifty shares, to which defendant agreed; thereupon plaintiff contracted for the fifty shares, afterwards paid for and received them, but defendant refused to comply with his agreement to take the thirty shares; that said thirty shares were really of the value of only $2,250, and that by" reason of the breach of defendant’s contract plaintiff was damaged in the sum of $750.

William Howell and Blandin, Bice & Ginn, for plaintiff in error.

Squire, Sanders & Dempsey, for defendant in error.

It is manifest that the amended petition set up an entirely different cause of action from that set up in the original petition. Such being the case, did the court err in refusing leave 'to file it?

Section 5114, Revised Statutes of Ohio, provides that “the court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to- the case, or, when the amendment does not change substantially the claim or defense, by conforming the pleading or proceeding to the facts proved.”

Manifestly the amended petition was offered under favor of the last clause of the statute quoted. As it substantially changed the plaintiff’s claim, the court had no right to allow it to be filed. For this reason there was no' error in refusing leave to file the amended petition offered. The fact that the trial judge gave another reason for his refusal is immaterial (Palmer v. Yarrington, 1 O. S., 253), and whether or not the •amended petition was in accordance with the facts proved at •the trial and made a cause of action, need not be considered.

The cause of action set up in the amended petition was entirely different from the cause of action upon which the parties went to trial, and whatever its merit, it could not be considered in that trial.

Finding no error in the record, the judgment is affirmed.