Civil Rule 53(C) provides in part as follows:
"When a party so requests and guarantees the costs, and the court so orders, the referee shall make a record of the evidence offered and excluded in the same manner as and subject to the same limitations upon a court sitting without a jury."
Under this rule it is evident that a party is entitled to a record of a proceeding to be held before a referee when these three conditions have been met: (1) a party so requests, (2) he guarantees the costs, and (3) the court so orders.
On January 7, 1975 appellee filed a Motion to Show Cause seeking a contempt citation against appellant for his failure to make alimony and support payments. The motion was set to be heard before a referee on March 18, 1975. On *Page 273 March 14, 1975 appellant, acting pro se, filed a written request for a court reporter who was to make a record of that proceeding. Appellant's request took the form of a motion and is hereinafter designated as a motion. The appellant's motion did not guarantee the costs of the record. By such motion appellant satisfied condition one but not condition two of Civil Rule 53(C).
I agree with the conclusion that the obligation for payment of costs under this rule creates a collateral undertaking and does not require an advance deposit, security for costs or a surety bond to insure payment of costs incurred in making a record. Conditions one and two of Civil Rule 53(C) are met when a party files a written motion for a court reporter and indicates therein that he guarantees the costs.
As to condition number three, the rule confers on the trial judge the discretion to allow or deny a request for a record of the proceedings to be held before a referee. In my view the rule does not contemplate a mandate upon the trial judge to order a record made of every proceeding before a referee where conditions one and two have been met. As I read the rule, the trial judge has the discretion to grant or deny the request.
R. C. 2335.213 imposes the primary liability for the payment of costs upon the party at whose request they were incurred. In the instant case appellant, in his written motion for a court reporter to be present at the hearing to be held before the referee, failed to indicate that he would guarantee the costs and thus did not satisfy condition two of Civil Rule 53(C). Though appellant did not obligate himself as a guarantor under Civil Rule 53(C) he nonetheless *Page 274 became primarily liable for the costs incurred therein under R. C. 2335.21. Merkle v. Hadbevny (1943), 40 Ohio Law Abs. 466, 55 N.E.2d 867. Therefore, appellant's failure to guarantee costs under Civil Rule 53(C) did not divest him of his primary obligation to pay such costs under R. C. 2335.21.
From the record in this case it appears that the trial court did not rule on appellant's written motion requesting a court reporter. Since the referee proceeded with the hearing without the court having ruled on appellant's motion, it can be argued that this was the equivalent of a denial of appellant's motion. Nevertheless the question remains whether the trial court's denial of appellant's motion, or its failure to rule thereon before the referee's hearing, constitutes reversible error. In my opinion it does.
Appellant, upon a Motion to Show Cause, was charged with the failure to make substantial alimony and support payments. If the referee's report was adopted by the court it could result in a finding of contempt against appellant and possibly in his incarceration. The referee was performing more than a ministerial function. Upon his written motion appellant was entitled to a record of the proceedings to be held before the referee and it was error for the referee to proceed with the hearing without any action being taken on appellant's motion by the trial court.
Because of the issues involved in appellee's Motion to Show Cause, in my opinion, it would have constituted an abuse of discretion for the trial court to deny appellant's motion for a record of that proceeding.
In summary, appellant, upon written motion duly made, was entitled to a record of the proceedings to be held before the referee for which record he became primarily liable under R. C.2335.21 and his failure to "guarantee costs" under Civil Rule 53(C) was not fatal to his request.
For these reasons I concur in the judgment rendered in this cause but concur in judgment only as to proposition of law number II.
3 R. C. 2335.21. "Special execution may issue for costs.
"When the party recovering judgment in a cause neglects to sue out execution immediately, or after such execution has been returned without satisfaction of costs, the clerk of the court, for his own benefit, may, or at the instance of a person entitled to fees in the bill of costs taxed against either party, shall issue against the party indebted to such clerk or other person for such fees, whether plaintiff or defendant, an execution to compel the party to pay his own costs. * * *" *Page 275