Opinion
No. 28869
Decided February 11, 1942.
Divorce and alimony — Change of venue, without hearing on application or affidavit, mandatory, when — State apportioned into judicial districts for judicial purposes — Section 12, Article XI, Constitution — Section 12000, General Code — Venue statute, constitutional and not modified by Section 11415, General Code.
1. Under Section 12000, General Code, upon timely application of a party and his or her affidavit that a fair and impartial hearing and determination cannot be had before the court in which the petition for divorce or alimony is filed, a change of venue shall be allowed and the cause removed to some county in the same judicial district. No hearing on the basis or grounds of such party's belief or reason for such application or affidavit is authorized. The statute is mandatory.
2. Section 12, Article XI of the Constitution of Ohio, apportions the state into judicial districts for judicial purposes.
3. Section 12000, General Code, is a venue statute only. It does not violate any provision of the Constitution of Ohio and is not modified by the provisions of Section 11415, General Code.
CERTIFIED by the Court of Appeals of Summit county.
Appellant, plaintiff below, filed his petition in the Court of Appeals of Summit county, asking a writ of mandamus to compel the court of Summit county to transfer to another Common Pleas Court in the same judicial district the divorce case of Grogan v. Grogan. In the same petition, a writ of prohibition was asked to prevent the Court of Common Pleas of Summit county from hearing such divorce action.
The petition alleged that on September 17, 1940, Mary E. Grogan had filed her petition for divorce against appellant in the Common Pleas Court of Summit county, the same being cause No. 133144; that service of summons, with a copy of the petition, was duly made on the defendant in the case (appellant here); and that thereafter, on February 5, 1941, appellant filed his answer and cross-petition, upon which service was had, with a copy of the answer and cross-petition served on Mary E. Grogan.
On April 3, 1941, following a hearing before one of the judges of the Common Pleas Court of Summit county, an order was made that appellant pay to Mary E. Grogan for her support and maintenance during the pendency of the cause the sum of $25 per month.
On April 7, 1941, appellant filed a motion for a rehearing of the order granting temporary alimony. On April 30, and before any hearing was had on the motion for rehearing (and before any hearing on the merits), appellant filed in the Common Pleas Court, under Section 12000, General Code, the following application and affidavit:
"State of Ohio} } In the Court of Common Pleas. } ss. } No. 133144 "Summit County}
"Mary E. Grogan,} Plaintiff, } } Application for Change of Venue v. } } and Affidavit. "Don B. Grogan, } Defendant }
"Comes now the defendant, Don. B. Grogan, and avers that a fair and impartial hearing and determination of this cause cannot be had before this court and defendant moves that a change of venue be allowed and this cause removed to another county in the same judicial district for hearing and determination in accordance with the provisions of General Code Section 12000.
"[Signed] Don B. Grogan
"In Propria Persona."Affidavit.
"Before me personally appeared Don B. Grogan who, being duly sworn, says that he signed the foregoing application and that he cannot have a fair and impartial hearing and determination of this cause before this court.
"Sworn to before me and subscribed in my presence this 15th day of April, 1941.
"[Signed] J. Earl Cox "Notary Public."
On June 12, 1941, Mary E. Grogan filed an affidavit in the Court of Common Pleas charging appellant with wilfully violating the order of the court previously made for temporary alimony.
On June 14, 1941, over the objection of appellant, appellee, as presiding judge of the Court of Common Pleas, proceeded with a hearing upon the application and affidavit, and then upon the affidavit and motion for contempt.
There were introduced in evidence the original papers and a transcript of the docket and journal entries in cause No. 133144 in the Court of Common Pleas, together with a transcript of the proceedings there had and of the evidence submitted at the hearing on the application for a change of venue.
The transcript of the proceedings and evidence disclosed that a hearing was had before appellee on the application and affidavit, during which appellant was examined as a witness and testifed that he was of the opinion that he could not get a fair trial before two of the six judges of the Court of Common Pleas of Summit county and that he had no information that caused him to believe that he could not get a fair trial before any of the other four judges of the court. The transcript further disclosed that the appellee had found that appellant believed that he would not be able to get a fair trial in but two of the six branches of the court, and, therefore, appellee had held that the application for a change of venue was not adequate and would not be granted.
The Court of Appeals denied the application for a writ of mandamus, but ordered a writ of prohibition to issue "prohibiting the defendant from hearing and determining matters now pending or matters that may hereafter be filed in the divorce proceeding described in the petition herein, or from assigning the same to be heard before another judge of the Court of Common Pleas of Summit county, unless and until it should hereafter, upon a hearing of the charges of disqualification of the judges of said Common Pleas Court, charged in the affidavit filed in said divorce proceeding, before the Chief Justice of the Supreme Court of Ohio, be determined that the defendant and/or a judge of the Common Pleas Court of said county to whom the defendant may assign said cause for hearing is not in fact disqualified."
Thereafter, the judges of the Court of Appeals certified the matter to this court after finding that the judgment upon which they had agreed was in conflict with a judgment pronounced upon the same question by the Court of Appeals of Mahoning county in the case of Paul v. Paul, 65 Ohio App. 246, 29 N.E.2d 812.
Mr. J. Earl Cox, for appellant.
Messrs. Ferbstein Sicherman, for appellee.
The decision of this case rests upon whether Section 12000, General Code, is still in effect and still means what it did when enacted. This section provides:
"Upon application of a party and his or her affidavit that a fair and impartial hearing and determination can not be had before the court in which a petition for divorce or alimony is filed, a change of venue shall be allowed, and the cause removed to some county in the same judicial district for hearing and determination."
In refusing to grant a peremptory writ of mandamus commanding the transfer of the divorce case to another county in the same judicial district and in allowing a writ of prohibition forbidding action by the judges of the Court of Common Pleas until the question of disqualification of the judges of such court had been determined by the Chief Justice of this court, the Court of Appeals relied upon Section 3 of Article IV, Constitution of Ohio, as amended in 1912 and the legislation passed in pursuance thereof. Section 3 of Article IV provides:
"One resident judge of the Court of Common Pleas, and such additional resident judge or judges as may be provided by law, shall be elected in each county of the state by the electors of such county; and as many courts or sessions of the Court of Common Pleas as are necessary, may be held at the same time in any county. Any judge of the Court of Common Pleas may temporarily preside and hold court in any county; and until the General Assembly shall make adequate provision therefor, the Chief Justice of the Supreme Court of the state shall pass upon the disqualification or disability of any judge of the Court of Common Pleas, and he may assign any judge to any county to hold court therein."
A review of the history of Section 12000, General Code, and the applicable provisions of the Ohio Constitution will show that the amendment of Section 3, Article IV, had no effect on the statute here in question.
Section 4, Article IV of the Constitution, still provides:
"The jurisdiction of the Courts of Common Pleas, and of the judges thereof shall be fixed by law."
Section 12 of Article XI of the Constitution still provides:
"For judicial purposes, the state shall be apportioned as follows: * * *
"Fourth district. The counties of Lucas, Ottawa, Sandusky, Erie and Huron, shall constitute the first subdivision; Lorain, Medina, and Summit, the second; and the county of Cuyahoga, the third subdivision, of the fourth district; and together, shall form such district."
When the Legislature decided to confer jurisdiction in divorce and alimony on the Courts of Common Pleas to the exclusion of this court, it passed a comprehensive act therefor on March 11, 1853. 51 Ohio Laws, 377.
As a part of that act conferring jurisdiction, the following change of venue section was enacted:
"Section 13. A change of venue shall be allowed by any court in which any petition for divorce or alimony may be filed for the hearing and determination of the same, upon the petitioner making application therefor, and making an affidavit that in his or her behalf a fair and impartial hearing and determination cannot be had before the court in which the petition is filed, and in case of such change of venue, the cause shall be removed to any county of the same judicial district for hearing and determination."
This section has never been amended, and while it has been edited in the codifications, it has always remained a part of the chapter on divorce and alimony. See Revised Statutes of 1880, Section 5704; Swan Critchfield, 514; General Code of 1910, Section 12000. It is still part of the chapter on divorce and alimony.
It will be observed that Section 3 of Article IV of the Constitution as it now stands is directed primarily at judges rather than courts, while Section 12000, General Code, is directed only to courts.
Prior to 1912, the original Section 3 of Article IV divided the state into common pleas districts. Section 12000, General Code, does not now and never did refer to common pleas districts. It refers only to judicial districts, and Section 12 of Article XI, supra, is the only provision creating such districts and is still in effect. It follows, therefore, that the 1912 amendment of Section 3 of Article IV did not affect Section 13 of the Act of March 11, 1853, now carried into the General Code as Section 12000.
Sections 1687 and 2253-1, General Code, are quickly disposed of here. The former facilitates disqualification proceedings, while the latter allows the Chief Justice of this court to collect his necessary expenses incurred in discharging his duties in determining the disqualification or disability of any judge. Those sections have no application to proceedings under Section 12000, General Code, which is purely a venue statute. Cases like Duncan, Judge, v. State, ex rel. Brown, 82 Ohio St. 351, 92 N.E. 481, which was based upon Sections 550 and 469, Revised Statutes, and State, ex rel. Chute, v. Marshall, Chief Justice, 105 Ohio St. 320, 137 N.E. 870, which was based upon Sections 1687 and 2253-1, General Code, were concerned with the disqualification of a judge and not with the question of venue. Sections 1687 and 2253-1, together with the provisions of Section 3, Article IV, became the successors of Sections 550 and 469 and related sections of the Revised Statutes, which were concerned with the disqualification of a judge and not with the question of venue.
Coming now to Section 11415, General Code, this is a general statute providing for a change of venue. It should need no citation of authority to convince that as between a general and particular provision, the particular controls. Furthermore, there is an important distinction to be noted between Sections 12000 and 11415. In the latter section, it is provided, "When it appears to the court that a fair and impartial trial cannot be had * * *," while in Section 12000, it is provided, "Upon application of a party and his or her affidavit that a fair and impartial hearing and determination can not be had * * *."
Section 12000, General Code, applying only to divorce and alimony cases, is not limited by Section 11415, General Code. Hence, there is no necessity for discussing the authorities applicable to Section 11415.
A section whose provisions are more analogous to the provisions of Section 12000 is Section 11416, General Code, which provides for a change of venue in a corporation suit, and which reads:
"When a corporation having more than fifty stockholders is a party in an action pending in a county in which the corporation keeps its principal office, or transacts its principal business, if the opposite party makes affidavit that he can not, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five creditable persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties."
As pointed out in 40 Ohio Jurisprudence, 1220, Section 83, while some of the lower courts did hold that under Section 11416 the court had a discretion as to the sufficiency of the affidavits, "but in its latest pronouncement upon the subject, the Supreme Court said that when the application for a change of venue is properly sustained, in accordance with the statute, the statute is mandatory."
In the case of Snell v. Cincinnati Street Ry. Co., 60 Ohio St. 256, 54 N.E. 270, this court held:
"It is not necessary, to entitle the applicant to the benefit of the statute [now Section 11416. General Code] in a case for which it provides, that his affidavit shall state the grounds of his belief that he can not have a fair and impartial trial in the county in which the action is pending, nor that the sustaining affiants shall state the grounds of their belief. It is sufficient that the affidavit of the applicant state that he can not 'as he believes,' have a fair and impartial trial in that county. And his application is 'sustained' within the purview of the statute, when there is filed the several affidavits of five credible persons residing in the county, stating that they entertain the same belief. When so complied with, the statute is mandatory."
While the validity of Section 12000, General Code, was challenged in the case of Hedland v. Lones, Judge, 128 Ohio St. 68, 190 N. K., 214, that case was disposed of in this court on the ground of estoppel.
In Easterday v. Easterday, 131 Ohio St. 165, 2 N.E.2d 8, it was held that there was no debatable constitutional question involved. There, however, the application and affidavit for change of venue were not filed until the case had been fully tried and submitted after hearing.
In the case of Lesh v. Lesh, 138 Ohio St. 492, 37 N.E.2d 383, it was accepted as a matter of course that the venue in that case had been changed from Defiance to Putnam county, and no issue was made thereon.
In 40 Ohio Jurisprudence, 1225, Section 90, it is said:
"The court in which a petition for divorce or for alimony has been filed is required, upon application of a party, supported by his or her affidavit, that a fair and impartial hearing and determination cannot be had before such court, to allow a change of the venue therein. In such case, the cause is removed to some county in the same judicial district for hearing and determination. In case of such transfer the court acquires full jurisdiction of the cause and all orders theretofore made in it. General Code Sections 1687, 11415, which are general statutes relating to change of venue, are not applicable to a change of venue in a divorce action, in view of the specific application of General Code Section 12000. This latter section of the code was not repealed by the constitutional amendment of Article IV, Section 3, providing for the election of a common pleas judge in every county of the state."
Upon timely application of a party and his or her affidavit that a fair and impartial hearing and determination cannot be had before the court in which the petition for divorce or alimony is filed, a change of venue shall be allowed and the cause removed to some county in the same judicial district. No hearing on the basis or grounds of such party's belief or reason for his application or affidavit is authorized. The statute is mandatory. Section 12, Article XI of the Constitution, apportions the state into judicial districts for judicial purposes.
The application and affidavit for a change of venue having been made prior to a hearing on the merits, appellant had a right to a change of venue to another county in the same judicial district.
The judgment of the Court of Appeals is reversed and a peremptory writ of mandamus as prayed for is allowed.
Judgment reversed and writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.
WILLIAMS, J., dissents.