Wolf v. Marshall

Sllyabus by

KINKADE, J.

PLEADINGS

(440 A4) Section 1687, General Code, does not require the filing of an affidavit of prejudice at least three days before the time of trial in cases where it is impossible to identify, the judge before whom the case is to be tried at least three days before the trial.

In such cases, if the affidavit be fiied at the earliest moment when counsel can know who the trial judge is to be, and before- the beginning of the trial, it is the duty of the trial judge to be governed by the affidavit of prejudice so filed in all respects the same as if it had been filed at least three days prior to the day of trial, and to disregard such affidavit of prejudice and proceed with the trial constitutes prejudicial error.

Marshall, CJ, Robinson and Jones, JJ, concur. Matthias, Day and Allen, JJ, dissent.