DocketNumber： No. 3015
Citation Numbers： 36 Ohio Law. Abs. 335, 68 N.E.2d 231
Judges： Barnes, Geiger, Hornbeck, Piornbeck
Filed Date： 11/21/1939
Status： Precedential
Modified Date： 11/12/2024
OPINION
This is an appeal on questions of law from an order of the common pleas court overruling a motion of the “defendant, C. I. Weaver, for himself and all other defendants served with summons, excepting certain named defendants, to suspend the further taking of depositions on behalf of the plaintiff during the pendency of the indictments returned by the grand jury of Franklin County, Ohio, in this court on or about March 28, 1938. numbered respectively 23,240 ta 23,251.” and upon motion of plaintiff-appellee to dismiss the appeal
Counsel are in agreement that if the order is appealable it is because it is “an order affecting a substantial right made in a special proceeding, * * * *” §12222-3 GC. Inasmuch as there can be no doubt that the order affects a substantial right of defendants, the only query left is, is it made in a special proceeding.
The question is not free from doubt. Respective counsel have cited many cases for and against the proposition that the motion of defendants is a special proceeding, none of which is especially helpful. Without a sense of certainty or finality, we are of opinion that the doubt should be resolved in favor of entertaining the appeal. The form of proceeding adopted by the defendants is not material, if properly asserted. If defendants have the right in the manner here adopted to invoke the chancery powers of the court to stay the taking of depositions, it would appear that such a proceeding would be special in nature. It seems appropriate to assert the right to equitable intervention by motion. The action of the Court sought by the motion in this case requires an order of the court which, to all intents and purposes, has all of the elements of finality as would attend a judgment.
We, therefore, hold that the order made by the trial judge on the motion to suspend the taking of further depositions was a final order from which an appeal lies. The motion to dismiss the appeal will be overruled.
Coming then to the merits of the appeal. There are 19 assigned errors, all of which are directed to the claimed prejudicial error of the trial judge in overruling the motion of defendants to suspend the taking of depositions by the plaintiff.
We have been favored with the full text of the opinion of Judge Scarlett in passing upon the motion. We find it so comprehensive and so completely in accord with our view of the law of the case that it would be but a re-statement of the same principles in different language should we write an opinion upon the questions presented. We, therefore, adopt Judge Scarlett’s opinion in its entirety. We are satisfied that he accorded to the defendants all of the rights to which they are entitled in the most favorable view of the law in their behalf.
The one factual claim of defendants, which if established, would weigh most heavily in their favor was resolved by the trial judge against them, namely, the charge that there was a collusive arrangement between plaintiff and his counsel and the Prosecuting Attorney, whereby the evidence secured and to be secured by the depositions of defendants in the civil suit was to be employed in the criminal cases against them. We have carefully examined the transcript of pleadings, docket, and journal entries and have been unable to find the affidavits of plaintiff and his counsel upon which the trial judge held against the claim of the defendants as to the collusive arrangement. In this situation we must assume that the trial judge properly determined the probative effect of these affidavits, This conclusion having been reached, there is in our judgment no error whatever in the order overruling the motion of the defendants to compel the plaintiffs to suspend the further taking of
Order affirmed.