In re Jones Law

GIFFEN, J.

Adopting the definition of a proceeding in court and wbat it comprehends as set forth in the case of Zanesville v. Telegraph & Tel. Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 52 L. R. A. 150; 83 Am. St. Rep. 725], it is manifest that tbe bearing provided for in the act of March 15, 1906 (98 O. L. 68; Lan. Rev. Stat. 7283a; B. 4364-30a), is judicial in character and comprehends the filing of the petition, process for bringing in tbe proper parties, and a judicial inquiry according to established' rules and practice. The plaintiff in error or contestant was entitled upon application to require the clerk of the court of common pleas to issue a subpoena for witnesses under the seal of the court, the sheriff to serve them, and the. process of the court to en-* force obedience thereto. The court therefore erred in refusing to compel attendance of the witnesses who were duly served and failed to appear, there being about twenty-one in all. It is claimed, however, that no proper exception was reserved; but it appears on page 326 of the bill of exceptions that counsel for contestant made a request for a ruling by the court as to whether it would compel the attendance of such witnesses; but without then ruling thereon and apparently without fault of- counsel, a discussion arose concerning a particular witness, Wenzel, then again as to four other witnesses; and thereupon the court said, as appears on pages 329 and 330: “If those gentlemen come in, Glenn and Daniel, by half-past two o’clock I will hear from them, and also hear Mr. gackhoff and Mr. Kraemer; and the case is closed, subject to the coming in of those four parties.” To Which counsel for the contestant excepted.

While this was not a direct and positive ruling upon the request made by counsel, it was significant and broad enough to overrule any request made and not already passed upon. The statute itself contemplates attempts at bribery, boycott, and intimidation of electors and the discharge of an employe; but it would be difficult, if not impossible, to defeat such attempts or such acts if the court refused to compel the attendance and testimony of witnesses. It also suggests the impossibility of advising the court in advance what the witnesses will’ testify, as they are at the time under restraint, or believed to be so. There seems therefore no good reason to deny a party in a proceeding of this kind the ordinary process of the court, provided his demands are made in good faith and within reasonable bounds. The court erred to the prejudice of the contestant.

The burden of proof was upon the petitioners to show that the territory described in the petition was a residence district; and while the evidence tending to prove such fact was slight, yet in the absence of any rebutting testimony it was sufficient to support the finding made.

The petition is composed of eleven different papers, each containing a description of the territory, and it is claimed that three of them contain a different description from that in the other eight, the discrepancy if any, consisting in a reference to the east boundary line of precinct H, instead of precinct B as a part of the east boundary line of the district. We deem it immaterial whether the reference be to precinct H or B, because the northern terminus of the east boundary line is fixed as the northeast corner of precinct M, and if the course southwardly and the monuments other than precinct B are-followed, the same point in the center of Linwood avenue will be-reached for the southern terminus, and the same territory included.

The final jurisdiction given by statute to this court only prevente" further proceedings in a higher court, and does not interfere with the right to grant a new trial in the court of common pleas.

Judgment reversed and cause remanded for a new trial.

Smith, J., concurs: