author: Doyle, J. Washburn, P. J.,

text:
    The State, ex rel. LeGere, Appellee, v. Carros, Appellant.
    (No. 1127
    — Decided May 10, 1946.)

      Mr. Wayne G. Black, for appellee.

      Mr. D. W. Myers and Mr. Rickard 8. Horan, for appellant.
   Doyle, J.

We are concerned in this appeal on questions of law from the Court of Common Pleas of Lorain county with the legal sufficiency of a judgment therein rendered, which adjudged Charles Carros the father of a bastard child, and ordered him to pay an amount fixed by the court under the authority of the statutes for his fortuitous parenthood.

A. jury of twelve determined the paternity upon evidence amply sufficient to satisfy the rule of preponderance. The charge of the court on the law was correct and. complete. The right to compfel the male-parent of an illegitimate child to pay, imter alia, for its support, has been the law of this state for years. Thus far the synthesis cannot be challenged.

In examining the errors assigned in support of the claim that the judgment of the Court of Common Pleas is erroneous, it is necessary to speak, of but one: Did the trial court commit prejudicial error “by placing in the jury box as a regular venire persons who were not legally selected to serve as jurors * * * ”? '

For reasons not shown in the record, there were not sufficient regular jurors in attendance to serve two courts. Counsel for the prosecutrix reflects the situation in his statement that “All of the [regular] jurors were first ordered to report for examination as prospective jurors for the trial of a criminal case in another court room. As jurors were excused from the other court room, they reported for service in the room where this case was awaiting trial. It appears that there was a shortage of jurors and the bailiff called additional talesmen to fill up the panel.' The three talesmen called were not on the regular jury list, although they possessed the qualifications of electors as fixed by the statutes of Ohio.”

The record shows that these nonregular jurors were visitors at the courthouse on the day of the trial, and, without the knowledge of the trial judge, were added to the regular jurors by the bailiff of the court and seated in the jury box for examination on the voir dire.

It cannot be disputed that there was a failure to follow, the statutory method to secure talesmen for the panel. The Code regulates the manner and form,- and it iyas not followed. Can we say that this dereliction must invalidate the verdict and judgment?

Counsel for each side examined the jurors at length. However, no interrogation was directed to this aspect of their qualifications. The trial judge was unaware of the irregularity. No objection was made to their service, and after examination they were passed for cause.

It is the judgment of a majority of the court that this case should be governed by the general rule pronounced by Judge Ranney in Eastman v. Wight, 4 Ohio St., 156, and followed in numerous cases in various courts of the state from that time on, and among which is a late opinion of this court: Cottman v. Federman Co., 71 Ohio App., 89, 47 N. E. (2d), 1009. Judge Ranney stated:

"It is certainly clear that all jurors must have the qualifications of electors; and if one not having such qualification is retained upon the panel, without the knowledge of the party or his counsel, and after reasonable diligence used to ascertain the fact when the jury is impaneled, a new trial should, for that cause, be granted. But it is equally clear that the proper time to take the objection is at the impaneling of the jury; and it must be taken to have been waived, unless the party is able to show to the court, upon the hearing of the motion, that with the exercise of such diligence he could not have taken the exception at the proper time.” (Italics ours.)

The following cases show the application, of this general rule to a variety of circumstances:

Hayward v. Calhoun, 2 Ohio St., 164; Kenrick v. Reppard, 23 Ohio St., 333; Wilder v. State, 25 Ohio St., 555; Watts v. Ruth, 30 Ohio St., 32; McHugh v. State, 42 Ohio St., 154; Murphy v. State, 45 Ohio App., 290, 187 N. E., 75; Conrad v. Kerby, 66 Ohio App., 359, 31 N. E. (2d), 168; Toledo C. S. Ry. Co. v. Toledo E. S. Ry. Co., 5 C. D., 643, 12 C. C., 367.

It is asserted that all or most of the cases cited supra have no application to jurors who were selected at random in the corridors of tfie courthouse by the bailiff of the court without the knowledge or direction of the court. And that counsel had the right to assume that the jury had been legally impaneled and that the responsibility of the trial judge negated the responsibility of counsel to ascertain that fact and object.

In the case under consideration, it must be borne in mind that we are not judging a suit in which the court erroneously ruled on challenges to individual jurors or to the array. In so far as the record shows, the three nonregular jurors were disinterested, honest and intelligent, and possessed the qualifications of electors and jurors, with the single exception that they had not been regularly summoned and were found in and about the courthouse, and for which reason they could have been challenged for cause.

Counsel for the appellant had available for use and comparison the list of regular jurors. They had "the opportunity to explore on 'the voir dire every phase of their qualifications. ■ And while they meticulously examined all of the jurors, including the three irregulars, they did not inquire, into the one question of which they now complain. These facts do not show the exercise of “due diligence,” without which the irregularity is waived. It was counsel’s duty to show the court, by their questions, the existing irregularity, and they cannot, at a later date, place the sole responsibility upon the judge, when, for aught that appears, they preferred the irregulars.

Viewing the record, it cannot be said that the defendant did not have, a fair trial by an impartial jury, consisting of persons having the qualifications of electors of the county and sworn to act under the guidance of an oath. No.r can it he said that fraud or imposition intervened.

The procedural steps for the securing of talesmen were waived by counsel, and as a consequence thereof the judgment should be affirmed.

Concerning the other errors assigned, we find none of a prejudicial character.

Judgment affirmed.

Stevens, J., concurs.

Washburn, P. J.,

dissenting. My dissent in this case is because, in my judgment, the facts do not warrant the application of the rule that, where there is an irregularity in the impaneling of a jury and a party by his attorney makes no objection thereto, after verdict such party is held to have waived the irregularity, unless it be shown that the attorney had no knowledge of such irregularity, and that the circumstances were not such that, by the exercise of reasonable diligence, he should have discovered the irregularity.

In this case, neither the trial judge nor any of the attorneys knew that there was not.a sufficient number of regularly summoned jurors to constitute a jury, and the bailiff, who anticipated such condition, spoke to three persons who were in and about the courthouse, and told them if they would remain they would probably be called upon a jury.

There were nine of such regularly summoned jurors, and when the bailiff called the jury she classed said three persons with the nine jurors and called them all, and in such a manner that neither the court nor the attorneys in’the case knew or had any suspicion that three talesmen from in and about the courthouse had been called to the jury. The case was completed in one day, and not until after verdict' had been returned did either the attorneys or the court discover that any talesmen bad been called for service upon tbe jury.

Section 11419-48, General Code, provides in parttbat “no person known to be in or about tbe courthouse shall be selected” as a talesman for service as a. juror “without tbe consent of both parties.” In my judgment, tbat section was violated in tbe selection of' the jury in question, without tbe knowledge of tbe attorneys, and under circumstances which did not, in tbe exercise of due diligence, require them to make any inquiry in reference to the violation of tbe statute.. Tbe section requires their consent, which was not obtained, and tbe principle of waiver was not applicable..


source: Caselaw Access Project

author: Putnam, J.

license: Public Domain

text:
    The State, ex rel. Pfeifer, v. Stoneking et al.

      (No. 668
    — Decided March 13, 1946.)

      Messrs. Vorys, Setter, Seymour & Pease and Mr. William L. Weber, for relator.

      Mr. Clarke B. Barbour, prosecuting attorney, Mr. Clarence A. Graham and Mr. Don J. Hollingsworth, for respondents. ' '
   Putnam, J.

This is an action in mandamus, originating in this court, in which the relator, an elector and member of the democratic party and a resident of ward three of the city of Zanesville, seeks a writ compelling .the respondents, the members of the board of elections of Muskingum county, to cause his name to he printed on the ballot to be voted on at the primary election on May 7, 1946, as a candidate for county central committeeman of the democratic party of Muskingum county from ward three of the city of Zanesville. The action involves a factional fight in that party for committee control in the county.

The facts briefly are as follows: Prior to February 6, 1946, the central committee was composed of 31 members, one each from the wards in the city of Zanesville and townships in the county. On. December 4, 1945, at a meeting of the central committee at which 19 members were present, a resolution was adopted making six members of the committee a quorum for the transaction of business. On February 6, 1946, the last day upon which petitions for candidates for members of the committee could be filed under the law, the central committee met, 11 members being present, and adopted a resolution in conformity to Section 4785-63,. General Code, which resolution provided in part:

“The Musldngum County Central' Committee as-elected May 7, 1946, shall consist of one.member from, each election precinct including the city of Zanesville.”'

That resolution was immediately filed with the Musldngum County Board of Elections and shortly thereafter 109 petitions for candidates for the central; committee from the precincts were filed with the board.. The relator and 30 others filed from wards and townships. They did not file a written protest within the' time prescribed, as provided in section two of' Amended Substitute Senate Bill No. 216 of the 96th General Assembly, being known as the Soldier’s Voting Law of 1945 (121 Ohio Laws, 40, 47). Evidently verbal protests were niade and on February 7, 9 and 12 hearings-were had by the county board of elections at which the-relator and members of his faction were present and were represented by counsel. The adverse faction, represented by counsel, and the prosecuting attorney, who represented the board of elections, were also present. Substantially the same propositions were there raised as are here presented. The board of elections then determined that the resolution presented to them on February 6,1946, by the central committee was a valid and legal resolution, accepted the 109 petitions filed from the precincts and declined to accept the petitions of the relator and the 30 others who filed from wards and townships. Whereupon this action was instituted and an alternative writ was granted.

The relator maintains and insists upon the following propositions:

1. The meeting of the central committee on February 6, 1946, was illegal and its actions were void because (a) no proper notice thereof was given, (b) any .action was void because no legal quorum was present, (c) no sufficient time was allowed, after the committee action, for filing of petitions in conformity thereto.

2. The action of the board of elections was arbitrary, illegal, an abuse of discretion and without authority of law.

The respondents claim with equal force that no arbitrary action was taken, that all proceedings were in accordance with law, that a proper quorum was present, and that the questions presented are political ones involving inter-party matters not justiciable, in this action. It is urged also that the relator had an adequate remedy at law.

We find from the evidence adduced that the meeting of the committee on December 4,1945, was duly called, that 19 of the 31 members of the central committee were present and that the resolution establishing six as a quorum of the central committee was adopted' by a majority of those present. We find further that actual notice of the meeting of February 6 was given by postcards which were mailed to the township members on February 4th and to ward members on February 5th to the addresses on file with the secretary of the committee. We find also that the notice sent to Chairman Burriell was to his listed address but which address was known to the secretary to be incorrect, that Burriell had actual notice of the meeting by February 5th and that he was present in the hall outside the meeting, was invited to the meeting and refused to attend but stayed there and attempted to persuade ■other members of the committee not to attend. No ■ other members of the committee complained of lack of notice of the meeting. The resolution was filed with the board of elections at 6:10 p. m. and the petitions were filed prior to 6:30 p. m. on February 6,1946. We find further that the signatures to the 109 petitions, filed from the precincts, were acknowledged prior to the time of the adoption of the. resolution changing the representation on the county committee.

The questions then presented are:

1. Did the central committee at the meeting on December 4, 1945, have a right to adopt a rule of procedure whereby six of its members constituted a quorum and under that rule to take the action contemplated by Section 4785-63, G-eneral Code, designating the units of representation on the committee or any other action?

2. In the absence of legislation fixing a time when that action must be taken, can this court so determine?

3. Were the Í09 petitions, filed from precincts and accepted by the respondents, invalid because they were acknowledged prior to the adoption of the resolution changing the representation?

4. Was the action of the respondents in accepting the. resolution arbitrary, illegal* an abuse of discretion and without authority of law?

5. Had the relator an adequate, remedy at law by filing a written protest'under section'two of amended Substitute Senate Bill No. 216, which filing he failed to do within the time prescribed?

It is established by the great weight of authority that political parties are voluntary organizations and in the absence of legislative enactment they are governed by their own usages and establish their own rules. (49 Corpus Juris, 1076.) In State, ex rel. Webber, v. Felton, 77 Ohio St., 554, at pages 579, 580, 84 N. E., 85, the court says:

“Political parties are voluntary organizations. They have been a law unto themselves, and they determine for themselves all questions'of fairness and reasonableness and of party expediency, until the state interferes, by legislation, and then no question can arise for judicial determination' excepting out of the legislation.”

The Legislature of Ohio, in Sections 4785-61 to -4785-68, General Code, has made certain regulations ■as- to party controlling committees which fere1 mandatory as far as that legislation goes but no farther. • Section 4785-64, General Code, provides how a party ■central' committee shall meet and organize initially, but as to other and following meetings the statute is silent. Consequently, the committee has a right to ■ make its own rules as to when and where such meetings shall be held and rules for procedure therein. Section 4785-63, General Code, provides that the outgoing committee shall determine whether the representation on the central committee shall be by wards and townships or by precincts. It fails to stipulate when that action • shall be taken.

The relator contends that in the absence of legislative enactment the' common-law rule as to quorums prevails, and relies upon the following cases, among others: Heiskell v. Mayor, etc., of Baltimore, 65 Md., 125, 4 A., 116, 57 Am. Rep., 308; United States v. Ballin, 144 U. S., 1, 7 (1892), 36 L. Ed., 321, 12 S. Ct., 507; State, ex rel. Cline, v. Wilkesville Township, 20 Ohio St., 288, 293 (1870). The first two of those cases have to do with legislative assemblies and the last one with township trustees. They are not in point. They deal with public offices. We are not dealing here with a public office, but with a party committee whose functions are entirely different. The argument of the relator really is that, there being no statutory provision as to what constitutes a quorum, the common law rule that all must be present to constitute a quorum prevails. We reject that proposition as well as the •-alternate contention that a majority must in any event ' he present to constitute a quorum in an organization of • this type.

Various voluntary associations such as fraternal organizations do, by their rules and regulations and bylaws, fix a quorum at far less than a majority of the members and their right so to do is not questioned. Various forms of organizations at town meetings can and do take action by a majority of those actually present. The Legislature, in Section 4785-63, General Code, has provided that each central committee shall elect an executive committee and has provided for the delegation of power to that committee. Frequently the entire power of the central committee is delegated to the executive committee and the executive committee can and does delegate its power, in whole or in part, to the chairman thereof. This practice of delegation of power by central committees has been recognized by the courts of this state as not illegal but authorized. The delegation of power by a central committee to an executive committee would be no more against public policy than to fix a smaller quorum for the transaction of business of a central committee which is in reality a delegation of power. Fifty West Broad, Inc., v. Poulson, 75 Ohio App., 194, 58 N. E. (2d), 483; State, ex rel. Humker, v. Hummel, 143 Ohio St., 604, 56 N. E. (2d), 167.

It has also been determined that rules of parliamentary practice and procedure are not necessary to be followed in all cases by party committees. In the case of State, ex rel. Culbert, v. Kinney, 63 Ohio St., 304, 58 N. E., 809, it was held that a recommendation required of the committee need not be made at a regular meeting but could be signed by the members thereof individually elsewhere.

The case of Smith v. Gannon, in the Court of Appeals for Lawrence county, is unreported but we have been furnished a copy of the pleadings and entries therein. Its facts are almost identical with the facts in the instant case except that there the action taken under Section 4785-63, General Code, was by the executive committee. The action was sustained and the writ denied.

It is our conclusion that, in the absence of a statutory provision to the contrary, the county central committee had a right to provide rules for its own procedure including a rule that less than a majority of the committee would constitute a quorum.

Such a rule having been adopted at the meeting of December 4th at which meeting a majority was present, the rule was binding and valid.

It is, likewise, our conclusion that the statute being silent as to when the outgoing committee should act in determining the basis of representation on the committee, this court will not so determine. It is a matter of party policy to be settled within the party by the members thereof.

As to whether the 109 petitions accepted by the board of elections were invalid because they were circulated and acknowledged prior to the adoption of the resolution of February 6th and its filing with the board of elections, we hold that those petitions speak from the time they were filed, and were valid.

It follows that the members of the board of elections, the respondents, did not act arbitrarily nor did they misinterpret the law.

It is also our opinion that section two of amended Substitute Senate Bill No. 216, providing for the filing of a written protest is applicable hereto. However, in view of our conclusions as above stated and in view of the fact - that the board of elections did give full hearings on the verbal protests in which the same questions were considered as would have been considered on a written protest, we prefer not to place our decision upon that ground.

It follows that the writ must be and is denied.

Writ denied.

Sherick, P. J., and Montgomery, J., concur.


author: By the Court.

text:
    Teegarden, a Minor, Appellant, v. Teegarden et al., Appellees.
    (No. 138
    — Decided March .26, 1947.)

      Mr. Royon G. Hess and Mr. R. E. Boiler, Jr., for appellant.

      Mr. E. J. Gcirmhausen and Mr. Richard P. Faulhner, for appellees.
   By the Court.

This cause is submitted on motion of appellant to amend the notice of appeal to read,

4 said appeal is on questions of law and fact, ’ ’ instead of reading, “upon questions of law, only.”

The action is one for divorce, which is a statutory proceeding in which an appeal on questions of law and fact may not be taken. Furthermore, no appeal bond having been filed as required by Section 12223-6, General Code, an appeal on questions of law'and fact-cannot be maintained. The motion to amend is overruled.

Motion overruled.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


text:
    Teegarden, a Minor, Appellant, v. Teegarden et al., Appellees.
    (No. 138
    — Decided March 26, 1947.)

      Mr. Royon G. 'Hess and Mr. R. E. Boiler, Jr., for appellant.

      Mr. E. J. Garmhausen and Mr. Richard P. Faulkner, for appellees.
   By the Court.

This cause is submitted on motion of. appellees to strike the bill of exceptions on the ground that it was not filed within the time prescribed by law.

There is no memorandum in support of the motion, but it may be assumed that the motion is directed to the facts of record in the trial court. The motion for new trial was overruled December 30, 1946. The bill of exceptions was filed in the trial court on February 15, 1947, which was 47 days after the overruling of the motion for new trial.

The filing of the bill of exceptions in the trial court within 40 days after the overruling of the motion for a new trial, as required by Section 11564, General Code, is mandatory. Pace v. Volk, 85 Ohio St., 413, 98 N. E., 111; McEvoy v. Ripley, 24 Ohio Law Abs., 678; Bridgewater v. Boyles, 29 Ohio Law Abs., 362; Lutz v. Lutz, 74 Ohio App., 517, 60 N. E. (2d), 67.

A bill of exceptions which is not filed in the trial court within 40 days after the overruling of the motion for a hew trial will'be stricken by the appellate court on motion. Kennedy v. Mancini, 22 Ohio Law Abs., 607; Eubank v. Industrial Commission, 59 Ohio App., 189, 17 N. E. (2d), 416; Seifer v. Industrial Commission, 29 Ohio Law Abs., 52.

The motion to strike will be sustained.

Motion-sustained.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.


text:
    In re Estate of Howard.

    (No. 3958
    — Decided March 24, 1947.)

      Mr. Henry A. Reinhard and Mr. Fred C. Rector, for appellant.

      Mr. Warren A. Smith and Messrs. Humphrey S Montgomery, for appellee.

      For opinion on merits, see In re Estate of Howard, 79 Ohio App., 208.

   By the Court.

This cause is submitted on application to certify the record of this case to the Supreme Court, on the ground that the judgment of this court is in conflict with the judgment in the case of In re Estate of Black, 75 Ohio App., 294, 61 N. E. (2d), 500.

The judgment in the Black case was reviewed by the Supreme Court (In re Estate of Black, 145 Ohio St., 405, 62 N. E. [2d], 90). The Supreme Court affir'med the judgment of the Court of Appeals.

The power -of the judges of this court to certify the record is conferred by Section 6, Article IY of the Ohio Constitution, which provides, inter alia:

<<* # # whenever the judges of a Court of Appeals find that a judgment upon which they have agreed is in conflict with a judgment pronounced upon the same question by any other Court of Appeals of the state, fhe judges shall certify the record of the case to the Supreme Court for review and final determination.”

A question arises as to the power of the judges of the Court of Appeals to certify on the ground of conflict, when the judgment of the Court of Appeals has been reviewed by the Supreme Court. .We recognize the binding effect of- the judgment of the Supreme Court. Manifestly, the judges of this court cannot find that the judgment in the instant case is in conflict with the judgment of the Court of Appeals in the Black case, otherwise it would be an admission that we have refused to follow the judgment of the Supreme Court. A conflict cannot possibly exist unless this court finds that the court in the instant case refused to follow the judgment of the Supreme Co,urt. This court approved the Judgment in the Black case, but distinguished the case at bar'on the facts.

This court, in discussing the opinion of the Supreme Court in the Black case, in its opinion stated:

“The case of In re Estate of Black is distinguishable from the instant case on the facts. In that case the ward of the guardian-complainant and the defendant had had numerous financial transactions over a period of several years. The factual situation presented required the court to consider a number of items of debits and credits. The court could not have determined their differences except by an accounting.”

After a careful consideration of the factual situations presented in the instant case and in the Blade case in the Court of Appeals, we still adhere to, and confirm, our judgment that the two cases are distinguishable on the facts.

We are npt unmindful of the importance of the issues raised in the instant case. It is our hope that the Supreme Court may find a way to take this case on review and decide this important legal question. However, we cannot certify the record on the ground that the judgment of this court is in conflict with that in In re Estate of Blade in the Court of Appeals, when, in our judgment, no conflict exists. If this court has failed to comprehend or has misapplied the law laid down by the Supreme Court in the Blade case, we have every reason to believe that the Supreme Court will find some way to review the judgment of this court.

The application will be denied.

Application denied.

Wiseman, P. J., Miller and Hornbeck, JJ., concur.