Opinion
No. 36169
Decided November 25, 1959.
Assignment — Rights or claims not assignable — Malicious prosecution — Cause of action does not survive owner — Pleading — Petition stricken as frivolous, when — Insufficient when considered with concessions in open court.
1. Unless a right or claim will survive the death of its owner, it cannot be assigned.
2. A cause of action for malicious prosecution did not survive the death of its owner at common law.
3. Under our existing statutes, a cause of action for malicious prosecution does not survive the death of its owner. (Sections 2305.21, 2311.21, 2311.25 and 2311.30, Revised Code, construed and applied.)
4. Where a party concedes in open court that a fact exists which, when considered with the allegations of his petition, necessarily leads to the conclusion that such petition is insufficient as a matter of law and cannot be amended to make it legally sufficient, such petition may be stricken as a frivolous pleading.
IN MANDAMUS.
This original action was instituted in this court by the filing of a petition against the Chief Justice of this court and Judge Case of the Fayette County Common Pleas Court, alleging so far as pertinent:
"* * * that on the ninth day of October, 1956, William Tumbleson as plaintiff filed an action against Walter P. Noble as defendant in case No. 22210, in the Court of Common Pleas of Fayette County, Ohio.
"Relator did on the tenth day of July, 1959, file a motion in said action * * * a copy of which is marked exhibit `A' and made a part hereof * * *.
"Relator immediately after filing said motion did file on July 10, 1959, an affidavit of disqualification against the respondent * * * Case, Judge of the Court of Common Pleas of Fayette County * * *.
"* * *
"The respondent * * * Case did on July 25, 1959, file a motion, the material part of which is marked exhibit `B,' made a part hereof * * *.
"The respondent * * * Chief Justice * * * prior to hearing any evidence sustained the motion of the respondent * * * Case, dismissed the affidavit * * * and refused to hear or take any evidence on the affidavit * * *."
The motion of relator of which exhibit A to the petition is a copy reads in full:
"Now comes J. Harvey Crow and says he has acquired a financial interest in the within action and is a proper party to this action and prays that he be made a party in this case."
The motion of Judge Case, of which exhibit B to the petition is a copy, reads so far as pertinent:
"Respondent Judge of the Common Pleas Court * * * moves * * * for an order dismissing the affidavit of disqualification * * * for the following reasons:
"1. That, by reason of * * * Section 2701.03, Revised Code * * * the court lacks jurisdiction to determine any issue of disqualification raised by and upon an affidavit * * * filed by any person other than a party, or counsel of any party, to the within action;
"2. That said affiant * * * Crow, is not a party nor is he counsel of any party to said action * * *."
The prayer of the petition is for an alternative writ of mandamus commanding our Chief Justice "to hear evidence on the affidavit of disqualification" and "determine whether such challenged judge is in fact disqualified and should be removed," or to "show cause why he should not be required to hear the affidavit of prejudice."
The cause is now before this court on a motion by the Chief Justice to dismiss the petition "on the ground that the matter is moot."
Mr. J. Harvey Crow, in propria persona. Mr. Phillip K. Folk, for respondent Chief Justice.
In considering this matter, we will assume that, as relator contends, the Chief Justice is required to conduct a hearing on the filing of an affidavit pursuant to Section 2701.03, Revised Code, setting forth that a common pleas judge is biased or prejudiced, and is further required to determine whether such judge is biased or prejudiced and should be removed. See State, ex rel. Chute, v. Marshall, Chief Justice, 105 Ohio St. 320, 137 N.E. 870, and State, ex rel. Pratt, v. Weygandt, Chief Justice, 164 Ohio St. 463, 132 N.E.2d 191.
We will further assume, as relator contends, that there are allegations in the petition justifying the conclusion that relator is, within the meaning of the words of Section 2701.03, Revised Code, a "party to" "a cause or matter pending before the" Common Pleas Court of Fayette County by reason of the filing of his alleged motion, even though he is admittedly not yet a party to the case in which that motion was filed.
We do not believe that it is necessary in the consideration of the instant case to determine whether relator is correct in his contentions that this court cannot dismiss the petition as moot unless mootness appears on the face of the petition, that this court cannot take judicial notice of anything about the Common Pleas Court case named and identified in the petition, and that this court cannot even take judicial notice of the action it so recently took in holding relator guilty of contempt of court for continuing the practice of law after his disbarment. See Myers v. State, 46 Ohio St. 473, 22 N.E. 43, 15 Am. St. Rep., 638. However, we would be less than human if we were not curious as to whether relator can circumvent his disbarment by the acquisition of "a financial interest" in a pending case. See 9 Ohio Jurisprudence (2d), 67 et seq., Section 1 et seq.
In answer to a question at the argument before this court on the motion to dismiss relator's petition in the instant case, relator stated that the Fayette County case referred to and identified in his petition is an action for malicious prosecution.
Unless a right or claim will survive the death of its owner, it cannot be assigned. See Cincinnati v. Hafer, 49 Ohio St. 60, 30 N.E. 197; Grant v. Admr. of Ludlow, 8 Ohio St. 1; Village of Cardington v. Admr. of Fredericks, 46 Ohio St. 442, 21 N.E. 766; 4 American Jurisprudence, 253, Section 31.
Section 2311.21, Revised Code, reads:
"Unless otherwise provided, no action or proceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, or against a County Court for misconduct in office, which shall abate by the death of either party."
It has been argued that, notwithstanding the abatement of an action for malicious prosecution on the death of either party thereto, a cause of action for malicious prosecution may survive by reason of the provisions of Section 2305.21, Revised Code. 1 Ohio Jurisprudence, 120, Section 48, Estrich, Survival of Causes of Action, 6 Cincinnati Law Review, 404. See Fowls v. City of Akron, 38 Ohio App. 432, 176 N.E. 694, Joyce v. Columbus, 21 Ohio Law Abs., 649.
That statute reads:
"In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or property, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto."
A cause of action for malicious prosecution did not survive the death of its owner at common law. 1 American Jurisprudence, 87, Section 123. Obviously, it would not be provided for by Section 2305.21, Revised Code, unless considered as one "for * * * injuries to the person or property." If it was so considered, then we would have the absurd situation of Section 2305.21, Revised Code, providing for the survival of such a cause of action and Section 2311.21, Revised Code, providing for abatement of an action based upon such a cause of action. Cf. Chilcote, Gdn., v. Hoffman, 97 Ohio St. 98, 102, 119 N.E. 364, L.R.A. 1918D, 575. That the General Assembly never so intended becomes apparent from consideration of the words of Section 2311.21, Revised Code, indicating that " no action or proceeding pending" was to "abate by * * * death of * * * parties" except certain specified ones (including actions for malicious prosecution) and of Sections 2311.25 and 2311.30, Revised Code, indicating that the revival of an action that did not abate could be effected only if the cause of action survived.
Hence, it is our conclusion that a cause of action for malicious prosecution does not survive the death of the owner thereof. See Cardington v. Fredericks, supra ( 46 Ohio St. 442). Cf. Alpin v. Morton, Admx., 21 Ohio St. 536, decided when what is now Section 2311.21, Revised Code, specifically provided for abatement of certain specified actions on death of defendant and not as now on "death of either party."
It follows that, since the Fayette County action referred to in relator's petition is an action for malicious prosecution, relator could legally acquire no financial interest therein.
A court has inherent power to order stricken from its files any sham or frivolous pleading. A petition that is on its face insufficient as a matter of law represents a frivolous pleading. White v. Calhoun, 83 Ohio St. 401, 94 N.E. 743.
Where a party concedes in open court that a fact exists which, when considered with the allegations of his petition, necessarily leads to the conclusion that such petition is insufficient as a matter of law and cannot be amended to make it legally sufficient, such petition may be stricken as a frivolous pleading.
This court will therefore sua sponte strike relator's petition from the files and dismiss this action.
Action dismissed.
ZIMMERMAN, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.
WEYGANDT, C.J., not participating.