
    The State of Ohio ex rel. Glass et al. v. Chapman.
    
      Clerk of court of common pleas — Duties are ministerial and nonjudicial — Mandamus to compel change of venue — Clerk cannot set up want of jurisdiction, when — Court procedure.
    
    The duties of a clerk of the court of common pleas are ministerial and non-judicial, and in a proceeding in mandamus to compel him to obey an order of the court of which he is clerk, allowing. a change of venue in a cause pending in said court, and directing him to transmit the papers and pleadings in said cause to the court of common pleas of the county to which the place of trial of said cause has been changed, such clerk cannot set up as a defense, and have adjudicated in such mandamus proceeding — the invalidity of such order or the want of jurisdiction in the court to make it.
    (Decided October 14, 1902.)
    
      In Mandamus.
    This is an application by relator for a writ of mandamus, commanding that respondent, Charles C. Chapman, as clerk of the court of common pleas of Ashland county, Ohio, enter upon the journal of said court an order made by said court in a certain cause therein pending, of Wade Armentr'out against William W. Gurley et al., directing that the place of' trial of said cause be changed from said county of Ashland to the adjoining county of Wayne. As ground of their application the relators, in their petition allege that at the May term of the court of common pleas of Ashland county, Ohio, on motion of these relators, who were defendants in said cause of Wade Armentrout against William W. Gurley et al., said court made and entered upon its docket an order directing that the place of trial of said cause be changed from said county of Ashland to the adjoining county of Wayne, and that the papers and pleadings in said cause, together with a certified copy of said order for removal, be transmitted by the clerk of court of Ash-land county to the clerk of court of said Wayne county, which order and direction of the court, relators aver, the defendant refuses to obey.
    An alternative writ of mandamus was allowed to issue in this case and was made returnable on September 25, 1902. On said day the respondent, Charles-C. Chapman filed his answer to said alternative writ, and from that answer the following facts affirmatively appear:
    That in the third subdivision of the sixth judicial district of Ohio, composed of the counties of Ashland,. Morrow and Richland, there were and are but two resident judges of the court of common pleas, to-wit, Judges Darius Dirlam and R. M. Campbell, both of whom were disqualified to sit in the cause of Wade Armentrout against W. W. Gurley et al., pending in said court of common pleas of said Ashland county. The cause or manner of their disqualification is not stated, and respondent alleges that he had no notice of the disqualification of either of them.
    That on or about the eighth day of July, 1902, the respondent, as clerk of the court of common pleas of said Ashland county, was notified by Hon. S. B. Eason, supervising judge of the sixth judicial district,, that Judge George Coyner, of Delaware county, one of the counties of said sixth judicial district, had, by him, said S. B. Eason, as such supervising judge, been designated and assigned to try said cause.
    That on the eighth day of August, 1902, and prior to the time of the hearing by Judge Coyner of a motion pending in said cause for change of venue, the plaintiff in said cause, Wade Armentrout, filed with this respondent, as clerk of court of Ashland county, the following affidavit:
    ' “Wade Armentrout, plaintiff, v. William W. Gurley et al., defendants.
    “Affidavit.
    “The State of Ohio, Ashland County, ss.
    “Wade Armentrout being first duly sworn according to law, says that he is the plaintiff in the above-named action; that the Hon. George Coyner, one of •the judges of the sixth judicial district (the resident judges being disqualified), and duly assigned to hear the motion or motions now on file in said cause, and to try the said cause, has bias for the defendants and prejudice against this plaintiff herein, in the above-entitled cause, and by reason of said bias and prejudice, is disqualified to hear and determine said motion or motions, or to try said cause; and further affiant saith not.
    “(Signed) Wade Armentrout.
    “Sworn to and subscribed before me this eighth day of August, A. D. 1902.
    “Upton Andress, Notary Public.”
    Respondent, in his answer, further alleges “that on said eighth day of August, 1902, he officially notified said Judge George Coyner of the filing of said affidavit of bias and prejudice, as above set forth, and that said Judge Coyner had full knowledge of the filing of, and the contents of said affidavit before the hearing of the motion, as set forth in the petition. No objection was made to said affidavit as to its form or sufficiency, but said affidavit was entirely disregarded by said Judge Coyner.” While the answer of respondent contains other and further averments, the above sufficiently show the nature and character of the defense relied upon.
    
      Messrs. Kerr & LaDow and Messrs. Cummings, McBride & Wolfe, for relators.
    
      Messrs. McCray & McCray and Mr. F. N. Patterson, for respondent.
   Crew, J.

It appears from the statements of defendant’s answer that he refuses to obey the order of said court, and to certify said cause to the court of common pleas of Wayne county, on the ground that the Hon. George Coyner, the judge who made said order and allowed said change of venue in the case of Wade Armentrout against William W. Gurley et al., was, at the time of making said order and granting said change, disqualified to sit as a judge in said cause, and was disqualified to make said order, by reason of the fact tliat an affidavit of disqualification, as provided by Section 550, Bevised Statutes, bad theretofore been filed against him by said Wade Armentrout, plaintiff in said cause.

To the answer of respondent herein the relator demurs, and the question here for determination is, Are the facts set up in defendant’s answer a sufficient justification to him for his refusal to obey the order so made and entered by Judge Coyner? We are unanimous in the opinion that they are not.

It affirmatively appearing from the undisputed facts in this case that Judges Dirlam and Campbell were both disqualified to sit in said cause of Armentrout against Gurley et al., and that they were the only judges of the court of common pleas residing within the third subdivision of the sixth judicial district, it became and was the duty of Judge Eason, as supervising judge of said district, having notice of these facts, to designate and assign a judge from another subdivision of said district, to hear the motion pending in said cause for change of venue. Such supervising judge assigned to this duty Judge George, Coyner, of Delaware county, who heard and sustained said motion, and made the following entry in said cause: “The court, on consideration of said motion for change of venue sustains the same, and it is ordered that the place of trial be, and the same hereby is changed to the county of Wayne. It is therefore directed that the clerk of this court transmit to the clerk of the court- of common pleas of Wayne county the pleadings and papers in this case, with a certified copy of this order.” This entry the clerk refused to journalize and refused, as directed in said entry,- to transmit to .the clerk of the court of common pleas of Wayne county the papers and pleadings in said cause.

Section 4965, Revised Statutes, provides: “The clerk of each of the courts shall exercise the powers conferred and perform the duties enjoined upon him by statute and by the common law; and in the performance of his duties he shall be under the direction of his court.”

Section 5831, Revised Statutes, provides, in part, that “All judgments and orders must be entered-on the journal of the court, * * * .”

Section 4962, Revised Statutes, is as follows: “The ■clerk shall keep the journals, records, books, and papers appertaining to the court, and record its proceedings.”

The order made by Judge Coyner, and compliance with which is here sought to be enforced, was an order made by a judge duly assigned to hear said cause, was such an order of the court as is authorized by Section 5029, Revised Statutes, and it does not lie with respondent in this proceeding to challenge either the validity of such order, or the authority and jurisdiction •of the court that made it. The duties of the clerk of the court of common pleas are ministerial and non-judicial. If the jurisdiction to hear and determine the motion for change of venue in said cause was wrongfully assumed by Judge Coyner, the plaintiff in that case, Wade Armentrout, has an appropriate remedy in error, but no right of this respondent is so affected by such order, nor has he any such interest in the order, or the cause in which it was made, as that he may, in this proceeding, question its regularity or the authority of the court to make it.

By section 4962, supra, it is made the imperative duty of the clerk to record thejproceedings of the court. When he refuses to do this, and performance of such duty is sought to be enforced by a proceeding in mandamus, such clerk cannot set up as a defense, and have tried in such proceeding, the invalidity of the order or judgment he refuses to record, or the want of jurisdiction of the court to make such order, or to enter such judgment.

Peremptory writ of mandamus allowed.

Burket, C. J., Spear, Davis, Shauck and Price, JJ., concur.  