Bauer v. Heaton

This is an appeal from a judgment of the Court of Common Pleas of Hamilton county, reversing a judgment of the Municipal Court of Cincinnati. The action was upon an open account. The only defense pleaded was a discharge in bankruptcy. The plaintiff denied the granting of this discharge generally, and specifically denied that, on account of the failure to give him notice, it operated as a bar to an action on this debt. At the trial, after the defendant had testified on direct examination as to the granting of the discharge in bankruptcy, and the discharge had been introduced *Page 182 in evidence, and counsel for the plaintiff had cross-examined him, plaintiff's counsel stated: "That's all." Then defendant's counsel said: "That's all. That's our case." Thereupon, plaintiff's counsel addressed the court, saying: "We ask for judgment, if your Honor please." Following this, there ensued a colloquy between the court and counsel in which the court said, inter alia: "There was a discharge in bankruptcy in 1936, I must take this discharge for what it is worth. I think I will have to give judgment for the defendant on this." After further discussion upon the effect of a discharge without other proof of notice, etc., of the bankruptcy proceeding, plaintiff's counsel said: "If your Honor, please, I will ask to reopen the case." This was followed by a discussion of the burden of proof that the discharge did not apply to this debt during which the court said: "I may be wrong, but I think it's incumbent upon you, and on account of having indicated at this particular time I think I am prevented, although I would like to, to permit you to reopen the case," and the court later said: "I will have to grant judgment for the defendant at this particular stage." Judgment was entered accordingly. From this recital of what occurred at the close of the cross-examination, it is at least questionable whether the plaintiff had rested his case. He still had the right to introduce evidence in support of the allegations of his reply, and to rebut the defendant's evidence. He certainly did not expressly say that he had no further evidence to offer and his motion for judgment at the close of the defendant's evidence contained no such implication. It was his right to make that motion without waiving his right to introduce evidence in rebuttal. However, all parties treated the situation as calling for the reopening of the case to allow additional evidence, and we will so treat it. It is apparent from the record that the judge of the *Page 183 Municipal Court was under the mistaken belief that after he had stated that he found for the defendant, he was required by the law to adhere to that ruling. Indeed, the record shows that if he had thought he had the power he would have exercised that power and permitted the plaintiff to introduce additional evidence. He refused to exercise any discretion and by so doing made a ruling foreclosing further evidence by the application of an inexorable rule nonexistent in law. Bound by his belief in the existence of this rule, the trial judge refused to consider the circumstances to determine what justice required. That is an abuse of discretion as that phrase is used in this connection; or an error of law dependent upon the choice of terminology. In 5 Corpus Juris Secundum, 477, Section 1585, the rule is stated that: "If the trial court has improperly refused to exercise a discretionary power vested in it, on the supposed ground of want of power, the judgment will ordinarily be reversed to the end that the discretion shall be exercised." A few of the many cases in which the rule has been applied are:Long v. George, 296 Mass. 574, 7 N.E.2d 149; Daly v. Blair,183 Mich. 351, 150 N.W. 134; Tilton v. Beecher, 59 N.Y. 176;Katz v. De Wolf, 151 Wis. 337, 138 N.W. 1013, Ann. Cas. 1914B, 237; Kohlman v. Hyland, 56 N.D. 772, 219 N.W. 228; andParkhurst v. Healy's Estate, 97 Vt. 295, 122 A. 895. The plaintiff duly excepted to the ruling of the court, and thereby preserved his rights. The ruling of the court was not based upon any finding that the evidence was incompetent, irrelevant, or immaterial. No matter how competent and relevant, the judge ruled that he was without power to hear it. Under such circumstances, no profert was necessary to show the error. The error was in the refusal to consider whether the plaintiff should have an opportunity to bring forth *Page 184 competent and relevant evidence. Long v. George, and Tilton v.Beecher, supra. As the determination of this question does not require the weighing of evidence, or in fact the consideration of evidence at all, no motion for a new trial was necessary. Any supposed deficiency in the motion for a new trial is immaterial. While the manner of giving notice of appeal is not to be approved, the Supreme Court has held it to be sufficient. Therefore, the case is here for review. We are of the opinion that the Municipal Court erred in refusing to consider whether justice required that the plaintiff be given the opportunity of offering additional new evidence. And it is a rare case when a court is justified in closing the door to additional evidence, when the request is promptly made. For these reasons, we are of the opinion that the judgment of the Common Pleas Court reversing the judgment of the Municipal Court of Cincinnati should be affirmed; and it is so ordered. Judgment affirmed. HAMILTON, J., concurs.