Opinion
No. 25069
Decided May 1, 1935.
Courts — Inherent power to establish rules — Court rules not to contravene organic law or valid statutes — Attorneys at law — Privilege to practice cannot be abridged by local court rule — Rule to apply to all attorneys, irrespective of residence — Court rule, requiring employment of local counsel, invalid.
1. Courts are vested with inherent power to establish rules regulating their proceedings and facilitating the administration of justice.
2. Court rules must not contravene either the organic law or a valid statute, and they must be reasonable in their operation.
3. When the Supreme Court of Ohio has duly admitted a person to practice as an attorney and counsellor at law, the privilege thereby conferred is not restricted to one county but is statewide and cannot be abridged by a local court rule.
4. A rule of court should apply uniformly to all attorneys appearing in that court irrespective of their place of residence in the state.
5. A rule of court requiring the employment of local co-counsel by counsel actually of record but not maintaining an office in that county, is invalid.
ERROR to the Court of Appeals of Lake county.
In the Court of Common Pleas the plaintiff, Brinsky, instituted this action on July 22, 1933, against Meyer, Silekovitz and The Fro-Joy Baker-Tabor Ice Cream Company as defendants. The plaintiff sought recovery of damages for injuries suffered to his person while a passenger on a truck owned and operated by the defendants Meyer and Silekovitz. The truck was struck by a passing automobile, and this collision caused the former to veer sufficiently from its path to strike a parked truck owned by the third defendant, The Fro-Joy Baker-Tabor Ice Cream Company. To the plaintiff's petition the defendant, The Fro-Joy Baker-Tabor Ice Cream Company, filed a separate answer on August 11, 1933, and the defendants, Meyer and Silekovitz, answered jointly on August 23, 1933.
After the issues were thus joined the trial court promulgated the following rule effective October 28, 1933:
"FOREIGN COUNSEL"In every case in which a pleading is filed on be-half of a party by counsel having no office in Lake County, local counsel shall be retained forthwith to receive notice of the time of applications, hearings and trial, notices to take depositions, and all other matters, and to attend to other details pertaining to the case, the names of such local counsel to be noted on the appearance docket as counsel for such party. No notice other than that to local counsel shall be required to be given by the Clerk, Counsel or Assignment Commissioner of the time of any application, hearing or trial."
Pursuant to the provisions of this rule the court thereafter assigned the case for trial on December 6, 1933. No notice thereof was given to counsel representing Meyer and Silekovitz, inasmuch as he had no office in Lake county, but counsel for the other parties were duly notified because they maintained local offices.
On the scheduled day the case was tried without the presence or knowledge of Meyer or Silekovitz or their counsel. A jury was waived, and the court heard the evidence and rendered judgment for the plaintiff in the sum of $1,809.00 against the defendants Meyer and Silekovitz. Judgment was rendered also in favor of the defendant, The Fro-Joy Baker-Tabor Ice Cream Company.
On March 12, 1934, the defendants, Meyer and Silekovitz, filed a motion under favor of paragraph three of Section 11631, General Code, to vacate the judgment as to themselves upon the grounds that there was a mistake, neglect or omission on the part of the Clerk in failing to notify them that the case was set for trial, and for the further reason that there was irregularity in obtaining the judgment. The trial court overruled the motion, and upon prosecution of error proceedings to the Court of Appeals this judgment was affirmed.
The case is in this court by reason of the allowance of a motion to certify.
Mr. E.A. Binyon and Messrs. Tuttle Hubbard, for plaintiffs in error.
Messrs. Giblin Giblin, for defendant in error Louis Brinsky.
Messrs. McKeehan, Merrick, Arter Stewart, Messrs. Alvord, Blakely Ostrander and Mr. McAllister Marshall, for defendant in error The Fro-Joy Baker-Tabor Ice Cream Company.
The single question here presented is whether a Court of Common Pleas is empowered to establish a rule requiring the employment of local co-counsel by counsel actually of record but not maintaining an office in that county.
It is of course fundamental that courts are vested with inherent power to establish rules for regulating their proceedings and for facilitating the administration of justice. 7 Ruling Case Law, 1023. 11 Ohio Jurisprudence, 756. This power exists independently of statute, and its exercise is especially to be commended at this time when the constantly increasing volume of litigation necessitates maximum efficiency in expediting court work lest justice be delayed and thereby virtually denied. However, it is equally fundamental that such rules must not contravene either the organic law or a valid statute; and likewise they must be reasonable in their operation.
Counsel for the plaintiff are in default of briefs, and did not appear for oral argument at either of the hearings in this court. Possibly the reason their views have not been presented is that they, too, have come to consider the decision in the case of State, ex rel. Wilke, v. Newton, Judge, 125 Ohio St. 640, 186 N.E. 94, as dispositive of the instant question. Under a similar rule the trial court in that controversy refused to enter a default judgment unless the plaintiff were represented by local co-counsel. This court allowed a peremptory writ of mandamus requiring the trial court to permit nonresident counsel for the plaintiff to appear and prosecute the action without such co-counsel.
The principle involved in both cases is that when this court has duly admitted a person to practice as an attorney and counsellor at law, the privilege thereby conferred is not restricted to one county but is statewide and cannot be abridged by a local court rule. Furthermore, a rule of court should apply uniformly to all attorneys appearing in that court irrespective of their place of residence in the state.
It is apparent that the judgments of the lower courts must be reversed and the cause remanded except as to the defendant, The Fro-Joy Baker-Tabor Ice Cream Company. The defendants, Meyer and Silekovitz, agree that the trial court was correct in entering judgment for the company.
Judgment affirmed as to The Fro-Joy Baker-Tabor Ice Cream Company and reversed as to the other parties.
STEPHENSON, WILLIAMS, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.
JONES, J., not participating.