In considering this matter, we will assume that, as relator contends, the Chief Justice is required to conduct a hеaring on the filing of an affidavit pursuant to Section 2701.03, Revised Code, setting forth that a common pleаs judge is biased or prejudiced, and is further required to determine
We will further assume, as relator contends, that there are allegations in the petition justifying the conclusion that relator is, within the meaning of the words of Section 2701.03, Revised Cоde, a “party to” “a cause or matter pending before the” Common Pleas Court of Payette County by reason of the filing of his alleged motion, even though he is admittedly not yet a party to the case in which that motion was filed.
We do not believe that it is necessary in the consideration of the instant case to determine whether relator is correct in his contentions that this court cannot dismiss the petition as moot unless mootness appears on the face of the petition, that this court cannot take judicial notice of anything about the Common Pleas Court case named and identified in the petition, and that this court cannot even take judicial notice of the action it so recently took in holding relator guilty of contempt of court for continuing the practicе of law after his disbarment. See Myers v. State,
In answer to a question at the argument before this court on the motion tо dismiss relator’s petition in the instant case, relator stated that the Payette County case refеrred to and identified in his petition is an action for malicious prosecution.
Unless a right or claim will survivе the death of its owner, it cannot be assigned. See Cincinnati v. Hafer,
Section 2311.21, Revised Code, reads:
‘ ‘ Unless otherwise provided, no action or рroceeding pending in any court shall abate by the death of either or both of the parties thereto, except actions for libel, slander, malicious prosecution, for a nuisance, оr against a County Court for mis
It has been argued that, notwithstanding the abatement of an action for malicious prosecution on thе death of either party thereto, a cause of action for malicious prosecutiоn may survive by reason of the provisions of Section 2305.21, Revised Code. 1 Ohio Jurisprudence, 120, Section 48, Estriсh, Survival of Causes of Action, 6 Cincinnati Law Review, 404. See Fowls v. City of Akron,
That statute reads:
“In addition to the causes of action which survive at common law, causes of action for mesne profits, or injuries to the person or prоperty, or for deceit or fraud, also shall survive; and such actions may be brought notwithstanding the death of the person entitled or liable thereto.”
A cause of action for malicious proseсution did not survive the death of its owner at common law. 1 American Jurisprudence, 87, Section 123. Obviously, it would not be provided for by Section 2305.21, Revised Code, unless considered as one “for * * * injuries to the person or property.” If it was so considered, then we would have the absurd situation of Section 2305.21, Revised Cоde, providing for the survival of such a cause of action and Section 2311.21, Revised Code, providing for abatement of an action based upon such a cause of action. Cf. Chilcote, Gdn., v. Hoffman,
Hence, it is our conclusion that a cause of action for malicious prosecution does not survive the death of the owner thereof. See Cardington v. Fredericks, supra (
A court has inherent power to order stricken from its files any sham or frivolous pleading. A petition that is on its face insufficient as a matter of law represents a frivolous pleading. White v. Calhoun,
Where a рarty concedes in open court that a fact exists which, when considered with the allegations of his petition, necessarily leads to the conclusion that such petition is insufficient as a matter of law and cannot be amended to make it legally sufficient, such petition may be stricken as a frivolous pleading.
This court will therefore sua sponte strike relator’s petition from the files and dismiss this action.
Action dismissed.