Hosbrook v. Loveland & C. Traction Co.

17 Ohio C.C. Dec. 42, 5 Ohio C.C. (n.s.) 209

• Court: Ohio Circuit Courts
• Decided: November 30, 1904
• Status: Published

Opinions

GIFFEN, J.

This action originated in the court of insolvency and was commenced to appropriate.property by the traction company, a corporation. The court sustained a motion to make the petition more definite and certain, and the-plaintiff not desiring to amend, the action was dismissed. Error was prosecuted, the' judgment reversed, and the cause retained in the court of common pleas for trial and final judgment. That court having first determined the right of the corporation to make the appropriation of the property described in the petition, ordered that the names of sixteen jurors be drawn from the box to assess compensation, and that a venire issue for their appearance. Upon return of the writ, and it appearing that the panel was incomplete, the clerk was directed to draw forthwith from the jury box the names of fifty persons to serve as jurors in this ease and a venire ordered accordingly. The panel being thus filled, each juror selected was interrogated as to whether he was in any way interested either as owner or agent or otherwise in the property sought to be condemned and appropriated, and each answering in the negative, and neither party excepting thereto, said jurors were duly sworn.

After a verdict by the jury a motion was made to retax costs, and it was ordered that the fees of the jury be not taxed as, an item of costs against .plaintiff but that the same be paid as provided by Lan. R. L. 8698 (R. S. 5182). To this order the defendants below prosecute error.

It is claimed by the defendants in error that no prejudicial error is stated in the petition in error, and that the plaintiffs in error are not the proper parties. ,The question concerns the traction company and the county, which is in no way represented in this proceeding, except as the plaintiffs in error may be said to represent all persons interested in the costs of suit.

In the case of Fiedeldey v. Diserens, 26 Ohio St. 312, a master commissioner sold certain real estate under foreclosure proceedings, but before the sale was confirmed the defendant paid to the plaintiff the amqunt of the judgment. The^court thereupon set the sale aside and ordered the defendant to pay the costs. On motion of the defendant, the court ordered a retaxation of the costs by striking out an item of $70 as poundage. To this order the master excepted and filed his petition in error in the district court. Welch, C. J., says on page 314:

“But there is another ground on which it seems to us the judgment of the district court must be held erroneous, and that is that the proper parties in error were not before that court. The petition in error should have been prosecuted by a party in the action, and not by the master. To hold otherwise would be to hold that every officer, and every witness entitled to costs in a case, might prosecute a proceeding in error to reverse the court’s order disallowing his claim for costs.”

In that case, the order was in favor of the defendant, who was therefore not complaining. The plaintiff could not be affected by the order in any event. None of the parties were interested in prosecuting error, the master alone being concerned.

So in this case, no substantial right of the plaintiffs in error is affected by the order; but being the original defendants in the action, they file a petition in error to protect the officers of the county, who, although not parties to the action, will be affected by the order made.

The policy of avoiding a multiplicity of suits is a sufficient reason for allowing the original parties to file a petition in error for the protection of persons interested in the costs of a cause.

Did the court err in making the order?

As a basis for the order the court found that “the jury impaneled in this cause over the objections of' the plaintiff was the regular jury provided for by Lan. R. L. 8680 (R. S. 5165), and not the jury provided for by Lan. R. L. 9998 (R. S. 6421).”

In the first place, there is no substantial difference in the proceedings under these two sections, except as to the time when the jurors shall attend.

Laning R. L. 9998 (R. S. 6421) provides that sixteen names shall be drawn by the clerk and sheriff from the jury box, and the writ served and returned as in other cases.

Second. The record shows that the names of the jurors were drawn from the jury box to assess the compensation and not to serve as regular jurors.

Third. The jury fees which shall be taxed as costs against the corporation, under Lan. R. L. 10028 (R. S. 6451), are those of “jurors summoned, and attending, or serving, in accordance with the provisions” of Chap. 8, Title II, Bev. Stat.; and it is not claimed that the jurors were not summoned or did not serve in accordance with the provisions of that chapter.

Nor is any prejudice to the defendant in error shown, by reason of the selection of the twelve jurors that tried the case, but it is claimed only that by reason of the omission of some form in impaneling the jury the fees of the jurors should not be taxed as a part of the costs against the corporation. Laning R. L. 10013 (R. S. 6436), contemplates a first and second jury trial in the common pleas court, and provides that if the verdict be more than first rendered, the costs of the second trial shall be paid by the corporation.

Laning R. L. 10017 (R. S. 6440) provides that, in case the probate judge is disqualified, the case may be commenced in the court of common pleas, and the proceedings shall conform in all respects, so far as applicable, to the provisions of Chap. 8, Title II, Rev. Stat.

It seems clear, therefore, that the provision in Lan. R. L. 10015 (R. S. 6438), that the court of common pleas “shall retain the cause for trial and final judgment, as in other cases,” does not authorize a judgment for costs other or different from that prescribed in that chapter; but directs that the case be retained and tried as other cases so far as the proceedings are applicable and not inconsistent with the provisions of the statute for the appropriation of property.

The only exception taken was to the order directing the clerk to draw fifty names from the jury wheel to fill up the panel — some of those originally drawn being not found or for good cause excused. From this venire a sufficient number to fill up the panel were accepted and sworn without any objection to the jurors so selected, and defendant in error accepted the benefits of a jury trial without any prejudice to its rights appearing. It did not request the court to order the sheriff to fill up the panel with talesmen or in any other manner, but was content with reserving an exception to the order of the court, without showing in what way it would be prejudiced. The primary object of drawing the names from the wheel is to insure a better class of jurors, and the original venire being made up from names so drawn, no good reason appears why vacancies may not be filled in the same way, except the delay in the trial of the cause, which was evidently the reason why the legislature provided in this one instance, that the panel might be filled up with talesmen. The purpose of the legislature was therefore more completely effected, without prejudice to the rights of the defendant in error, by selecting all the jurors from names drawn from the wheel, and none from the bystanders.

The order complained of is a final one within the meaning of Lan. R. L. 10297 (R. S. 6707), as it was a summary application in an action after judgment.

The defendant in error by answer admits that judgment was rendered on the verdict in favor of certain plaintiffs in error, and if it elected to settle with other plaintiffs in error without a judgment being entered, it cannot thereby avoid the payment of costs after receiving the benefits of a trial.

We áre of opinion therefore that the eourt erred in ordering that the fees of the jury be not taxed as an item of costs.