Fessenden v. Fessenden

Ohio Court of Appeals

Fessenden v. Fessenden

165 N.E. 746, 32 Ohio App. 16, 6 Ohio Law. Abs. 716, 1928 Ohio App. LEXIS 358

CourtOhio Court of Appeals

DecidedOctober 29, 1928

Docket850

StatusPublished

Cited by5 cases

This text of 165 N.E. 746 (Fessenden v. Fessenden) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fessenden v. Fessenden, 165 N.E. 746, 32 Ohio App. 16, 6 Ohio Law. Abs. 716, 1928 Ohio App. LEXIS 358 (Ohio Ct. App. 1928).

Pincite

Opinion

*717 HOUCK, P. J.

An examination of the record discloses that but two witnesses testified in the trial. The plaintiff was called as a witness in his own behalf, and after he had testified, the trial judge on his own motion called the defendant to the witness stand, and after she had given testimony, the trial judge said: “I will grant him a-divorce on the ground of gross neglect of duty and order him to pay a lump sum of $50 and $10 a week until the first of April, 1929. You may have exceptions.”

Thereupon counsel for defendant requested the court to be permitted to offer other witnesses to testify in behalf of defendant, which the court refused, and defendant excepted. Did the trial judge err in refusing to hear the testimony of defendant’s witnesses, and was he guilty of an abuse of discretion by such refusal?

We are inclined to believe that the trial court abused its discretion in not permitting defendant to offer testimony of witnesses in her behalf. It will be observed that but two witnesses testified: the plaintiff and the defendant. Litigants are entitled to a fair and impartial trial, and in order to have this, their witnesses should be permitted to testify, under the rules of the court and within proper bounds of judicial discretion and the law governing testimony of witnesses. Parties to the suit are entitled to testify, if qualified under the law, and counsel are entitled to be heard. These are not only statutory but constitutional rights of litigants. It follows that the trial judge was guilty of an abuse, of discretion which is erroneous and of a prejudicial nature to the plaintiff in error.

Is the judgment contrary to law?

The decree entered in this case attempts to set aside and in legal effect vacate a former decree of alimony entered in the Summit County Court of Common Pleas between the parties hereto, the courts being of concurrent jurisdiction. This was and is contrary to law, for the reason that the trial judge in the instant case was without legal authority to vacate, set aside or modify the decree of alimony entered in Summit County.

The conclusion of the court is unanimous in finding that the judgment of the Common Pleas Court is manifestly against the weight of the evidence and contrary to law, and the judgment of the lower court is reversed and the cause remanded for further proceedings according to law.

(Sullivan, J., and Lemert, J., concur.)

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*717 HOUCK, P. J.

An examination of the record discloses that but two witnesses testified in the trial. The plaintiff was called as a witness in his own behalf, and after he had testified, the trial judge on his own motion called the defendant to the witness stand, and after she had given testimony, the trial judge said: “I will grant him a-divorce on the ground of gross neglect of duty and order him to pay a lump sum of $50 and $10 a week until the first of April, 1929. You may have exceptions.”

Thereupon counsel for defendant requested the court to be permitted to offer other witnesses to testify in behalf of defendant, which the court refused, and defendant excepted. Did the trial judge err in refusing to hear the testimony of defendant’s witnesses, and was he guilty of an abuse of discretion by such refusal?

We are inclined to believe that the trial court abused its discretion in not permitting defendant to offer testimony of witnesses in her behalf. It will be observed that but two witnesses testified: the plaintiff and the defendant. Litigants are entitled to a fair and impartial trial, and in order to have this, their witnesses should be permitted to testify, under the rules of the court and within proper bounds of judicial discretion and the law governing testimony of witnesses. Parties to the suit are entitled to testify, if qualified under the law, and counsel are entitled to be heard. These are not only statutory but constitutional rights of litigants. It follows that the trial judge was guilty of an abuse, of discretion which is erroneous and of a prejudicial nature to the plaintiff in error.

Is the judgment contrary to law?

The decree entered in this case attempts to set aside and in legal effect vacate a former decree of alimony entered in the Summit County Court of Common Pleas between the parties hereto, the courts being of concurrent jurisdiction. This was and is contrary to law, for the reason that the trial judge in the instant case was without legal authority to vacate, set aside or modify the decree of alimony entered in Summit County.

The conclusion of the court is unanimous in finding that the judgment of the Common Pleas Court is manifestly against the weight of the evidence and contrary to law, and the judgment of the lower court is reversed and the cause remanded for further proceedings according to law.

(Sullivan, J., and Lemert, J., concur.)

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165 N.E. 746, 32 Ohio App. 16, 6 Ohio Law. Abs. 716, 1928 Ohio App. LEXIS 358, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fessenden-v-fessenden-ohioctapp-1928.

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