Opinion
No. 24442
Decided March 21, 1934.
Divorce and alimony — Change of venue — Section 12000, General Code — Party securing change of venue estopped to deny court's jurisdiction.
A wife brought suit against her husband for divorce, alimony and the custody of a child, in Mahoning county where she resided. Her husband-defendant, dissatisfied with the Mahoning County Common Pleas Judge, filed an affidavit of prejudice against such judge, and sought for and obtained, by virtue of Section 12000, General Code, a change of venue to the adjoining county of Columbiana. In proceedings in Columbiana county the Common Pleas Judge therein, after hearing, made various important interlocutory decrees in the action, which were adverse to the husband. Subsequently, and on the day the cause was called for trial before the respondent judge, the husband for the first time objected to the Columbiana county court's jurisdiction over the action, for the assigned reason that Section 12000, General Code, which he himself had invoked, was constitutionally invalid. Held: That since he himself had invoked the jurisdiction of the Columbiana county court and had taken part in such interlocutory proceedings and having for the first time raised the jurisdictional question after decrees were made apparently adverse to him, the husband-defendant was estopped from thus trifling with the courts and from denying the Columbiana county court's jurisdiction to hear and determine the action.
ERROR to the Court of Appeals of Mahoning county.
The relator, Rhody W. Hedland, filed his petition for a writ of prohibition in the Court of Appeals of Mahoning county, praying that the defendant Lones, judge of the Common Pleas Court of Columbiana county, be prohibited from trying or from attempting to carry out any judgments, orders or decrees in a divorce case pending before him, wherein Margaret Hedland was plaintiff and the relator was defendant. The case was heard by the Court of Appeals upon the pleadings and evidence, and, a writ of prohibition having been denied in that court, the relator prosecuted error to this court.
The following facts were without substantial dispute: On April 17, 1933, Margaret Hedland filed her action in the Court of Common Pleas of Mahoning county, where she resided, against her husband, Rhody W. Hedland, where she prayed for divorce, alimony and for the custody of a minor son. On April 22nd of the same year relator filed an affidavit of prejudice against the judge of the Court of Common Pleas for that county; and on the 25th day of that month he filed in the Mahoning county court a motion, supported by affidavit, asking the court to allow a change of venue from Mahoning county, "and that the cause may be removed to some county in this judicial district for hearing and determination." The motion was heard by the Mahoning county court on the same day, and the relief sought by the relator was allowed by its decree removing the divorce cause from Mahoning county to Columbiana county for hearing and determination. On April 26 of the same month, and after the cause had been removed to Columbiana county, the relator filed his motion, supported by affidavit, in the Columbiana county court asking that a temporary restraining order theretofore granted by the judge of the Mahoning county court be set aside, and that the care and custody of the relator's minor son be intrusted to him; he also asked the Columbiana county court to make any further order as the court might deem for the best interests of the child. On May 1, 1933, Judge Lones of the Columbiana county court decreed that, until his further order, during each four weeks period thereafter, the wife should have the custody of the child for three weeks and the relator should have him for one week. He further ordered that meanwhile the relator should pay $5.00 per week for the support of the child. On May 5, 1933, the relator filed his motion in the Columbiana county court asking that the decree theretofore entered, relating to the custody of his minor son, be so modified as to require the infant to be sent to the kindergarden, and that its custody and control should be intrusted to the infant's grand-parents, and, furthermore, asking for a decree restraining the wife from interfering in the meantime with such care, custody and control. On May 8, 1933, the wife moved the court for an order to show cause why the relator should not be held in contempt, alleging that he had forcibly taken the child from plaintiff's custody and secreted him from her in violation of the decree theretofore made by the court. On the same day Judge Lones of the Columbiana county court found the relator guilty of contempt and ordered him to be committed to the county jail until lie complied with the order to deliver the child to the wire. Thereupon, the relator having purged himself of contempt by delivering the child to the wife, the court dismissed the contempt charge, and on the same day Judge Lones modified his former order entered May 1, 1933, so that each of the parties might have custody of the child for two weeks during each four weeks period.
Subsequent to these proceedings, to wit, on August 10, 1933, the said divorce case of Margaret Hedland against her husband being called for trial on its merits by Judge Lones of the Columbiana county court, this relator for the first time objected to the Columbiana county court's jurisdiction over the action, assigning as a reason therefor that his removal of the cause under Section 12000, General Code, was in contravention of the constitution of the state; and, further, that such change of venue was in violation of the sections of a Mahoning county special act. Relator's objection to his lack of jurisdiction being overruled by Judge Lones, the relator brought this action in prohibition, as heretofore stated.
Mr. Joseph N. Higley, Jr., and Mr. William B. Moore, for plaintiff in error.
Mr. H.H. Wickham, for defendant in error.
The relator himself invoked the jurisdiction of the Columbiana county court. By that action he compelled the plaintiff in the divorce suit to incur the expense necessary for the defense of her suit in a foreign instead of her home county, where she resided. In addition to this it is evident that the relator apprehended from the various interlocutory orders made by Judge Lones of the Columbiana county court that an adverse judgment would likely be rendered against him upon the merits. He had asked the court for the personal custody of the child, this was refused; he had asked that its custody be placed with the grandparents, and this was also refused. He was compelled to pay $5.00 per week for the support of the child, and lastly he was found guilty of contempt in disobeying the court's order pertaining to the child's custody. It is obvious that the relator should be estopped from thus trifling with the courts, and from questioning the jurisdiction of the court in the divorce proceeding. He will not be permitted to gamble upon the results of the case and change his course of action should it be apparent that these results would be unfavorable to him. In Cleveland, C. C. Rd. Co. v. Mara, 26 Ohio St. 185, Welch, J., said: "Any other rule of practice would enable parties to trifle with the court by first requiring it to hear the case upon its merits, and then, when an adverse decision on the merits is reached, turning round and denying its jurisdiction, thus rendering all its labors abortive and useless." See also: Drake et al., Trustees, v. Tucker, 83 Ohio St. 97, 93 N.E. 534; Cadwell v. Cadwell, 93 Ohio St. 23, 112 N.E. 148; Trumbull Savings Loan Co. v. Saviers, 115 Ohio St. 403, 154 N.E. 317. In those cases the appellees had made no objection to the jurisdiction of the Court of Appeals until after the submission of the case. This court held that the jurisdiction of the appellate court to hear the case on appeal was waived unless the jurisdiction was seasonably challenged by a motion to dismiss the appeal before trial. The same principle should be applied to this case under the peculiar facts developed by the record. From what has been said it becomes unnecessary to decide whether or not Section 12000, General Code, authorizing change of venue in divorce cases, is constitutional.
The relator is not entitled to the extraordinary writ of prohibition and the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ALLEN, STEPHENSON, MATTHIAS, BEVIS and ZIMMERMAN, JJ., concur.