Summary
holding that relying upon unsworn testimony violates the Ohio Constitution and is error
Summary of this case from In re E.C.Opinion
No. 80-160
Decided December 10, 1980.
Actions — Declaratory judgment — Hearing erroneously conducted, when — Failure of plaintiff to prosecute claim — Reliance upon unsworn witness testimony — Use of purported answer to interrogatories.
APPEAL from the Court of Appeals for Lawrence County.
In April of 1975, Allstate Insurance Company filed a declaratory judgment action in the Court of Common Pleas of Lawrence County, alleging that its policy of automobile liability insurance with the defendant Clarence Rule for his Volkswagen did not provide coverage for a November 3, 1974, automobile accident in which he was operating a Chevrolet owned by his mother-in-law, defendant Rose M. Weser. A passenger in the Chevrolet, defendant Judy Branham, allegedly sustained injuries.
Branham filed a cross-claim against Rule and Weser for her personal injuries. Weser's answer to Allstate's complaint admitted her ownership of the Chevrolet and denied the balance of the complaint for want of knowledge. Rule did not file a responsive pleading.
Allstate unsuccessfully prosecuted a motion for a summary judgment, claiming that coverage was excluded under the terms of the policy because Rule and Weser lived in the same household and Rule did not have the consent of Weser to operate the Chevrolet.
Allstate's complaint was set for trial on the merits on January 30, 1978, before a visiting judge. The trial proceeded despite the existence of severe weather conditions in southern Ohio and the unsuccessful attempts of counsel for Allstate to secure a continuance.
Counsel of record for Allstate and for the defendants Branham and Weser did not appear. The only attorney present was hired by Allstate to represent Rule on the cross-claim filed by Branham. The defendant Weser was the only party present.
The court conducted a brief hearing, during which it questioned, but not under oath, Rose Weser and her son, Stanley Weser, for whom the Chevrolet had been purchased. Additionally, the court apparently considered Rule's answer to interrogatories on the merits of Allstate's claim, notwithstanding the answer to the interrogatories bore no signature, jurat or proof of service.
The court entered judgment against Allstate on the issue of coverage and overruled Allstate's motion for a new trial, which was based on the denial of the continuance and the use of Rule's purported answer to the interrogatories on the merits of Allstate's claim. Allstate appealed and the Court of Appeals affirmed by a majority vote.
The cause is now before this court upon allowance of a motion to certify the record.
Dooley, Heath Schneider Co., L.P.A., and Mr. James V. Heath, for appellant.
Messrs. Musgrave, Musgrave Casey, Mr. Raymond G. Musgrave, Mr. James M. Casey and Mr. Joseph L. Cain, for appellee Judy Branham.
Three fundamental errors, arising from the informal hearing conducted by the trial court on the merits of Allstate's claim, dictate that the judgment entered against Allstate on its complaint for a declaratory judgment be set aside and the cause remanded for further proceedings. Therefore, it is unnecessary for this court to consider the claim that the trial court abused its discretion in refusing to grant Allstate's request for a continuance due to the inclement weather conditions.
First, the provisions of Civ. R. 41(B)(1) provide for a dismissal upon the failure of the plaintiff to prosecute a claim, and such a dismissal operates as an adjudication on the merits. Civ. R. 41(B)(3). Hence, where a plaintiff fails to appear on the date set for a hearing, the court may either order a Civ. R. 41(B)(1) dismissal or grant a continuance. There is no authority in the Civil Rules for proceeding to a trial on the merits of the plaintiff's claim in his absence.
Civ. R. 41(B)(1) provides:
"Where the plaintiff fails to prosecute, or comply with these rules or any court order, the court upon motion of a defendant or on its own motion may, after notice to the plaintiff's counsel, dismiss an action or claim."
See Dolan v. Fulkert (1972), 30 Ohio App.2d 165, 168.
Civ. R. 41(B)(3) provides:
"A dismissal under this subdivision and any dismissal not provided for in this rule, except as provided in subsection (4) of this subdivision, operates as an adjudication upon the merits unless the court, in its order for dismissal, otherwise specifies."
Secondly, Section 7 of Article I of the Constitution of Ohio requires an oath or affirmation as a prerequisite to the testimony of a witness. See Clinton v. State (1877), 33 Ohio St. 27, paragraph two of the syllabus; State v. Ballou (1969), 21 Ohio App.2d 59, 60. Here, the trial court relied erroneously upon the unsworn testimony of Rose Weser and Stanley Weser in reaching its decision.
Section 7 of Article I of the Constitution of Ohio provides, in pertinent part:
"***[N]or shall any person be incompetent to be a witness on account of his religious belief; but nothing herein shall be construed to dispense with oaths and affirmations.***"
Thirdly, Civ. R. 33(A) mandates that answers to interrogatories be signed, sworn to and served upon the party submitting them. A document which purports to contain the answers of the defendant Rule to interrogatories submitted by the defendant and cross-claimant Branham was filed with the clerk of courts and apparently considered by the court with respect to Allstate's claim, notwithstanding the fact that the document did not contain the signature of Rule, bore no jurat and was not served. The use of such a document in determining the merits of a claim is erroneous.
Civ. R. 33(A) provides, in pertinent part:
"Each interrogatory shall be answered separately and fully in writing under oath, unless it is objected to, in which event the reasons for objection shall be stated in lieu of an answer. The answers are to be signed by the person making them. The party upon whom the interrogatories have been served shall serve a copy of the answers and objections within a period designated by the party submitting the interrogatories, not less than twenty-eight days after the service thereof or within such shorter or longer time as the court may allow.***"
For the foregoing reasons, the judgment of the Court of Appeals is reversed and the cause remanded to the trial court for further proceedings.
Judgment reversed.
CELEBREZZE, C.J., W. BROWN, P. BROWN, SWEENEY, LOCHER, HOLMES and DOWD, JJ., concur.