Burns v. Burns

17 Ohio C.C. Dec. 149

• Court: Ohio Circuit Courts
• Decided: January 27, 1905
• Status: Published

Opinion

PER CURIAM.

The plaintiff in error claims that the trial judge had no jurisdiction of the ease, for the reason that she had, prior to the day of trial, filed an affidavit to the effect that the judge was prejudiced against her.

Upon the day of trial she appeared with her counsel, who stated to the court in her presence:

“That he wished it distinctly understood that he was not going to have any more nonsense about the previous attempt at swearing the judge off the bench by reason of the affidavit filed January 8 by the defendant,'but that all that was waived by the defendant through him, her counsel, as well as were the affidavits that had been filed swearing. Judge Smith off the bench by Mrs. Burns, anil that he and his client proposed to try the case on the facts to Judge Smith then and there. ’ ’

He also stated:

‘ ‘ That he would not agree to appear in the case and act as counsel for Mrs. Burns until Mrs. Burns agreed and consented to waive the affidavit that she had filed swearing Judge Smith off the' bench, and agreed to submit the case to Judge Smith for trial and determination.”

This is not a waiver by counsel only, but is in fact a waiver by the party herself, and the authorities cited by counsel for plaintiff in error are not in point.

We may well conclude from this statement that the plaintiff in error was then advised that the facts set forth in the affidavit were not true and that she had therefore consented to submit her ease to the judge before whom it had been set.