State of Ohio ex rel v. Norman M. Wolf.

Said

of the sixth judicial district of the state of Ohio." allegation was mutilated by erasing the word "defendant' and inserting the word" one;" and further changed by insertiug after the words "common pleas" the words "duly elected and qualified. "And further, said original petition was so mutilated and changed by adding to the allegations thereof the following: "Said N. M. Wolfe is the duly elected and qualified judge of the common pleas court in and for the second subdivision of the sixth judicial district of the state of Ohio.'

Further, said original petition contained the words "N. M. Wolfe, judge of the Common Pleas Court," which was so changed as to read "N. M. Wolfe, defendant, judge of the Common Pleas Court."

Further, said original petition contained the following allegation, to wit: "That immediately on the filing of the said affidavits above set forth, in each and every above named case, the clerk of the common pleas court of Richland county, Ohio, then and there entered the fact of the filing of each and every affidavit above set forth in each and every above named case on the trial docket of said court of common pleas of Richland county, Ohio, as required by law, and thereupon the said clerk of said court of common pleas of Richland county, Ohio, did then and there notify the then presiding and supervising judge of the sixth judicial district of the state of Ohio, the Hon. John D. Nicholas, who was not then disqualified himself and is still qualified to act in said above entitled causes, and who has failed without any fault on the part of these relators to proceed in the manner provided by section 469 of the Revised Statutes of Ohio, to designate and assign some other qualified judge of the common pleas court of said sixth judicial district outside of the second subdivision of the said sixth judicial district, to hold the court of common pleas in Richland county, Ohio, and try the causes where the above

State of Ohio ex rel v. Norman M. Wolfe.

common pleas court of John D. Nicholas, hav

named causes are pending in said Richland county, Ohio; said Hon. ing delayed to make any such appointment to the present ́time, and having failed to designate and appoint some qualified judge of the sixth judicial district to try the above causes as required by law."

Defendant says: Said allegations were changed first by the following insertions, to wit: Immediately following the words therein, "as required by law," the following allegation, "of which court said N. M. Wolfe was then judge. Also immediately preceding the words therein "who was not then disqualified himself," the following allegation:"and did also notify the said Hon. John D. Nicholas, as judge of the common pleas court in and for the third subdivision of the sixth judicial district of Ohio," and also immediately preceding the words therein, "to hold the court of common pleas, in Richland county, Ohio," the following allegations: "and designated and assigned himself the said John D. Nicholas aforesaid, and has notified the defendant, N. M. Wolfe, of such desigration."

Defendant further says: Said allegations were also changed and mutilated by striking out the following, "has failed without any fault on the part of these relators', and by striking out the following language: "Said Hon. John D. Nicholas, having delayed to make any such appointment to the present time, and having failed to designate and appoint some qualified judge of the sixth judicial district to try the above causes as required by law.'

Defendant further says: Said original petition contained the following prayer, which prayer followed the allegations of said petition so mutilated and changed as aforesaid, towit: "Wherefore relators pray that a peremptory writ of mandamus issue to said Hon. John D. Nicholas as judge of the common pleas court of the third subdivision of the sixth judicial district of the state of Ohio (the said N. M. Wolfe,

State of Ohio ex rel v. Norman M. Wolfe.

the present supervising judge of said sixth judicial district, being disqualified to act in the premises as aforesaid), commanding him to designate and assign some judge of the court of common pleas of the sixth judicial district of the state of Ohio, outside of the second subdivision of said sixth judicial district, and being properly qualified, to hold the court and try these causes where said above named causes are pending in the court of common pleas of Richland county, Ohio."

Defendant says: The above and foregoing was all of said prayer, and the only prayer when said petition was so verified as aforesaid; but before the same was presented for the allowance of said pretended writ, said prayer was so mutilated and changed to make it read as follows, to wit: "Wherefore relators pray, that a peremptory writ of mandamus issue to said Hon. N. M. Wolfe as judge of the common pleas court of the second subdivision of the sixth judicial district of the state of Ohio (the said N. M. Wolfe, judge of the common pleas court of the said sixth judicial district, being disqualified to act in the premises as aforesaid), commanding him to allow said Hon. John D. Nicholas, as judge aforesaid, to hold the court of common pleas in Richland county, Ohio, and try each and every one of the above named causes; and that he, the said N. M. Wolfe, refrain from deciding any one of the above named causes, or rendering any order or decree, or taking any action in any of the above named causes.

And defendant says: That before said petition was SO mutilated and changed, to wit: On the 19th day of November, A. D. 1894, in the county of Erie and the state of Ohio, before one George H. Peeke, an alleged notary public, the said Ed. H. Zurhorst subscribed and verified the same, and then and there declared upon his oath that the allegations of said petition in its original form were true as 'said Zurhorst declared he then verily believed; and defend

State of Ohio ex rel v. Norman M. Wolf.

ant says: That neither before or since said pretended verification and said mutilation has said petition been differently verified or sworn to, nor has the same in its present form been verified, signed or sworn to by any person or persons whomsoever, and that said alternative writ was procured by fraud and imposition practiced upon honorable judges of this court, and without any evidence or affidavit either of the truth of said averments, or even in belief thereof. Wherefore defendant asks to be dismissed, with his costs.

Now come the plaintiffs and relators, Ed Zurhorst and Charles W. French, and for a first reply to the answer of Hon. N. M. Wolfe say, that they deny each and every allegation that said answer contained.

And for a second reply, they say that since the allowance of the alternative writ herein, said N. M. Wolfe has complied with the order of the court, and has allowed the Hon. John D. Nicholas to hold court and make orders in all the cases mentioned in the objections of plaintiffs and relators herein, except the case of H. Balliett v. The Lucas Construction Co., which has since been settled to the satisfaction of these plaintiffs and relators.

The following are the statutes which authorize proceedings in mandamus:

Section 6742 provides for the writ and by whom it may be issued, and then section 6743 provides that the defendant may demur on the return day.

The answer makes the questions that might have been made upon demurrer. It has been urged that the petition does not show such a state of things as would authorize a writ of mandamus to issue. It. was issued against one of the judges of the court of common pleas in the second subdivision of the sixth district, and the writ asks that he be directed to turn over to Judge Nicholas certain cases in which affidavits were filed which disqualified Judge Wolfe from sitting in said cases by reason of bias and prejudice.

State of Ohio ex rel v. Norman M. Wolf.

The court does not find in this statute to which I am referring, that after these affidavits were filed, there was anything for Judge Wolfe to do further in said cases. But this writ asks that he be made to turn the cases over to Judge Nicholas.

The proceeding under section 550 provides for the affidavit which I will read:

"When a judge of the common pleas court is interested in any case or matter pending before the court in any county of the district, or is related to, or has a bias or prejudice for or against either or any party in such cause, or is otherwise disqualified to sit in such cause or matter, and there is no other judge in the same subdivision who is not so disqualified, on the filing of an affidavit of either or any party in such cause or matter or of his or her counsel, setting forth the facts of such interest, bias, prejudice or dis-. qualification, the clerk of the court shall enter the fact of the filing of such affidavit on the trial docket in such case, and forthwith notify the supervising judge, or if he be disqualified as aforesaid, a judge of some other subdivision who is qualified, of the district, who shall proceed in the same manner as provided in section 469 of the Revised Statutes of Ohio, to designate and assign some other judge of the district not so as aforesaid disqualified, to hold the court and try the cause where the same is pending; and it shall thereupon be the duty of the judge so assigned to proceed and try such cause.”

Section 469 is a provision of the statute as to the judges of a district meeting to determine who shall be the presiding judge, at which time they apportion the work in their subdivisions among them, and designate what judge shall hold certain courts, etc. This statute, section 550, says, that on the filing of an affidavit, which is provided for in this section, the clerk of the court in which the affidavit is filed shall minute it on the trial docket, and then he shall notify the presiding judge who is to designate someone to try the case, if there is no other judge in the subdivision to try it, and those are the steps that are to be taken.