Machaterre v. Dusha

WILLIAMS, J.

The counsel for defendant who made these statements is a member of the bar of this county of long and wide experience, covering many years. He said he would probably say a plenty, and he did. By the language used he charged counsel for plaintiff with conduct unprofessional, if not criminal, and for the charges there was no foundation in the evidence. It would, seem that regard for truth should have dictated a different course. It is the duty of an attorney, as an officer of the court, to aid in the administration of justice, .a fact undoubtedly well-known to defendant’s counsel and yet the record discloses that the trial was surrounded by an atmosphere which made a fair and impartial verdict impossible. It is well settled in Ohio that such conduct on the part of counsel constitutes error prejudicial to the plaintiff in error.

Hayes v. Smith, 62 Ohio St., 161, 186;

Erie R. R. Co. v. McCormick, 69 Ohio St., 45, 56;

Miller v. State, 73 Ohio St., 195, 205.

It is the imperative duty of a trial judge to promptly cheek argument of a prejudicial character which amounts to misconduct of counsel, and this duty may often arise where there is no objection or exception by opposing counsel. It was especially the duty of the trial judge to interefere in the instant case, as the objectionable matter was excepted to by plaintiff’s counsel. It may be that there were admonitions of the trial judge, previous to the calling in of the stenographer, which went unheeded. But even if admonition failed, this county has the “full complement of county buildings,” and it was the duty of the trial judge, as it is always his duty, to take the most drastic action, if necessary, to stop such improper practice.

Defendant’s counsel was guilty of such misconduct as amounted to error prejudicial to the plaintiff, and for that reason the judgment of the court below will be reversed and the cause remanded for a new trial.

(Richards and Lloyd, JJ., concur.)