Opinion
No. 31217
Decided February 25, 1948.
Divorce and alimony — Change of venue — Section 12000, General Code — Good faith of applicant not involved — Court to allow change of venue, when — Prohibition and mandamus proper remedies to enforce rights.
1. Where, prior to a hearing on the merits of a divorce or alimony case, a party thereto files an application under Section 12000, General Code, for a change of venue and an affidavit that a fair and impartial hearing and determination cannot be had before the court, the question of the good faith of the party filing the application is not involved, and the court must allow the change of venue and effect the removal of the cause to some county in the same judicial district for hearing and determination. ( State, ex rel. Grogan, v. Wanamaker, Judge, 139 Ohio St. 293, approved and followed.)
2. When a change of venue is sought pursuant to the provisions of Section 12000, General Code, prohibition and mandamus are proper remedies to prohibit the judge of the court in which the case is pending from taking any further proceedings therein and to compel him to effect the removal of the case to another county in the same judicial district.
APPEAL from the Court of Appeals for Trumbull county.
Robert G. Keller, appellee herein, hereinafter referred to as relator, instituted an action in the Court of Appeals for Trumbull county for a writ of prohibition and a writ of mandamus against G.H. Birrell, a judge of the Court of Common Pleas of Trumbull county, appellant herein, hereinafter referred to as respondent.
In his petition relator alleged that he had filed a "petition for divorce against Vivian Elizabeth Keller, et al.," in the Court of Common Pleas of Trumbull county, the same being case No. 53814; that all steps had been taken in the way of service; and that thereafter Vivian Elizabeth Keller filed her answer and cross-petition, on which service was made on the relator.
Relator alleged further in his instant petition that while cause No. 53814 was pending, and before it was heard on its merits, he filed his application and affidavit, under Section 12000, General Code, in the following language:
"Now comes the plaintiff herein, Robert G. Keller, and avers that a fair and impartial hearing and determination of this cause cannot be had before this court and plaintiff moves that a change of venue be allowed and this cause removed to another county in the same judicial district for hearing and determination, in accordance with the provisions of G. C. Section 12000.
"Robert G. Keller."
Relator's instant petition alleges further that his application for a change of venue was overruled by the respondent; that, unless respondent is prohibited and restrained from hearing and determining matters now pending, or matters that might hereafter be filed, in cause No. 53814, relator will be irreparably damaged; and that he has no adequate remedy at law.
The prayer of the instant petition is for a writ of prohibition prohibiting the respondent from hearing or determining matters now pending, or matters that may hereafter be filed, in the divorce case and from making or entering any decrees therein, and for a writ of mandamus directing and ordering the respondent to grant relator's application for a change of venue to transfer the divorce cause to another county within the same judicial district.
Respondent filed an answer in which he alleged that relator's instant petition shows upon its face that the motion for change of venue had already been overruled and, therefore, a writ of mandamus is now impossible of fulfillment; that the motion for change of venue was not filed until after relator had invoked the jurisdiction of the court, on account of which his motion for change of venue was not timely; and that the motion for change of venue was not made in good faith but was prepared and used for the purposes of bargaining.
Relator filed a reply containing a general denial of the allegations and statements in the answer.
The Court of Appeals ordered that a peremptory writ of mandamus and prohibition issue against the respondent; that upon the service of the writ respondent refrain from hearing or determining matters now pending or that may hereafter be filed in the divorce proceedings and be prohibited from making or entering any orders, entries or decrees therein; and that he transfer the case of Robert G. Keller v. Vivian Elizabeth Keller et al., being case No. 53814 in the Common Pleas Court of Trumbull county, to another county in the judicial district within which Trumbull county is situated.
The case is before this court as a matter of right, having originated in the Court of Appeals.
Messrs. Guarnieri Secrest, for appellee.
Messrs. Pierson Pierson, for appellant.
We are of the opinion that the question in this case has been substantially answered by this court in the case of State, ex rel. Grogan, v. Wanamaker, Judge, 139 Ohio St. 293, 39 N.E.2d 853.
The sole question involves the construction of Section 12000, General Code, which reads as follows:
"Upon application of a party and his or her affidavit that a fair and impartial hearing and determination can not be had before the court in which a petition for divorce or alimony is filed, a change of venue shall be allowed, and the cause removed to some county in the same judicial district for hearing and determination."
The facts in the present case are that the divorce suit between relator and his wife was pending in the Court of Common Pleas of Trumbull county; that there were two judges of that court; that in the divorce case one of the judges had granted a temporary restraining order, without bond; that in the case there had been submission of a motion for determination of temporary support and custody of a minor child; that there had been a submission to a hearing of the motion of the relator for modification of an order regarding the custody of the minor child; and that relator had secured the postponement of the date of the trial from the date set.
When the divorce case was called for hearing there was some delay in proceeding because respondent charged a grand jury and heard an uncontested divorce case, and in the interim of waiting the attorneys for relator and the defendant in the divorce case were in consultation.
When the divorce case was finally called for trial, relator filed his application for change of venue under Section 12000, General Code, before any witness had been sworn or any proceedings had in the trial upon the merits.
It is the contention of the respondent that since relator had submitted to the Trumbull county court in the disposition of matters preliminary to the trial on the merits of the divorce case, and since he gave no indication as to his intention to file a motion for a change of venue until the attorneys had been directed to proceed, the application for change of venue was filed too late. It was a further contention of the respondent that the application was not filed in good faith but for the purpose of bargaining with the defendant in the divorce case. If these contentions were addressed to Section 1687, General Code, with reference to the disqualification of a judge, or to Section 11415, General Code, which is the general statute providing for change of venue, they would have considerable force, but Section 12000, General Code, applies only to divorce and alimony cases, and its language is so plain and unambiguous that there can be no doubt as to its meaning.
In the Wanamaker case, supra, the first paragraph of the syllabus reads:
"Under Section 12000, General Code, upon timely application of a party and his or her affidavit that a fair and impartial hearing and determination cannot he had before the court in which the petition for divorce or alimony is filed, a change of venue shall be allowed and the cause removed to some county in the same judicial district. No hearing on the basis or grounds of such party's belief or reason for such application or affidavit is authorized. The statute is mandatory."
It is true that Section 12000, General Code, makes no provision as to the time when the application shall be filed, but Judge Turner in the opinion in the Wanamaker case, on page 302, said: "The application and affidavit for a change of venue having been made prior to a hearing on the merits, appellant had a right to a change of venue to another county in the same judicial district."
In the present case, although relator had submitted to the Trumbull County Common Pleas Court in relation to preliminary matters in his divorce suit, it is undisputed that even though the parties were in court and had been directed to proceed, the application was filed before any witness had been sworn as to the merits of the case. Therefore, the respondent had the mandatory duty to direct the change of venue. Since Section 12000, General Code, requires a change of venue when the proper application with affidavit has been filed, and since no hearing as to the reason for such application or affidavit is authorized, the question of good faith is not involved. As relator filed his application and affidavit before any hearing on the merits of the divorce case, the matter of good faith is not relevant. This may seem a harsh doctrine, and respondent in overruling the application for change of venue said:
"The court feels that the actions of the plaintiff are rather unfair, in that if he had any objection to the courts of Trumbull county it would have been much more just to the defendant to have mentioned that objection and made the application for transfer of the case before the case was called for trial."
That statement might be persuasive if Section 12000, General Code, did not require the court to allow the change of venue upon an application and affidavit. But we cannot pass upon the fairness or the wisdom of an enactment of the General Assembly. Our only function is to declare the meaning of what the General Assembly has enacted.
It is contended by respondent that mandamus and prohibition are not proper remedies in the present case, but with that we cannot agree. If respondent had the mandatory duty to allow the change of venue upon the filing of the application and affidavit by relator, the respondent had no discretion in the matter and his obligation can properly be compelled by a writ of mandamus. Furthermore, although having overruled the application for change of venue, respondent proceeded with the hearing of the divorce case upon the cross-petition of the defendant therein but without any participation or submission by relator.
Respondent has not yet journalized a decree in the divorce case, and since he had no authority to proceed with the case after the application and affidavit for a change of venue were filed, prohibition is a proper remedy to prevent any further action by respondent.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, MATTHIAS, HART, ZIMMERMAN and SOHNGEN, JJ., concur.