Lead Opinion
Thе issue to be determined in this appeal is whether, under the provisions of Civ. R. 3(C) (4), a trial court, upon its own motion and without conducting a hearing, may order a change of venue to another county.
Civ. R. 3(C) (4) reads:
“Upon motion of any party or upon its own motion the court may transfer any action to an adjoining сounty within this state when it appears that a fair and impartial trial cannot be had in the county in which the suit is pending.”
Prior to the adoption of the Rules of Civil Proceedure,, R. C. 2311.38 provided for change of vеnue. That section, read:
“When it appears to the court that.a fair and impartial trial cannot be had in the county where the suit is pending,' the court may change the place of trial to sоme adjoining county.”
The test for determining whether a transfer should be ordered, expressed in both former R. C. 2311.38, and in Civ. R. 3(C) (4), is the same, i. e., transfer can be ordered when it appears that “a fair and impartial trial сannot be had in the county where the suit is pending.” The ■rule, however, unlike the statute, expressly allows thе court to transfer a case “upon its own motion.”
The phrase “upon its own motion” is identical in import to the expression “sua sponte,” Avhich means “ [o]f his or its own Avill or motion; voluntarily; Avithout prompting or suggestion.” Black’s Law Dictionary (4th ed.),1592. Inasmuch as the words of the rule “upon its own motion” are unambiguous, “the assistance of rulés of construction is not required” (Sudia v. Dietrich [1966],
By authorizing a trial court to voluntarily order a change of venue, the rule allows transfers to be made without consultation with counsel and without conducting a heаring. The' rule thus rests discretion in the trial court to itself determine whether a change of venue should be ordered. The rule does not require a hearing, but neither does it prohibit a trial court from “on its OAvn motion”
Appellants argue that to interpret Civ. E. 3(C) (4) to permit a trial сourt to change the venue of a civil action “.without affording the parties a hearing, without taking ©r considering any evidence,” abridges their right of due process of law. Swindell-Dressler Corp. v. Dumbauld (C. A. 3, 1962),
“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”
Thе foregoing federal statute, like former E. C. 2311.-38, contains no provision for transfer by the court on its own motion as does Civ. E. 3(C) (4). Thus, Swindell-Dressler Corp. v. Dumbauld is distinguishable.
The question remains whether the provisions of Civ. E. 3(C) (4), permitting transfer by the court on its own motiоn without hearing, constitute denial of due process.
Venue, of course, is to be distinguished from jurisdiction. “Jurisdiction connotes the power to hear and decide a case on its merits, while venue cоnnotes locality, the place where the suit should be heard.” New York, Chicago & St. Louis Rd. Co. v. Matzinger (1940),
The transfer of the cáuse from Fulton County to Lucas County changes only the place of trial. The transfer does not deprive appellants of their right to a “# * * fair trial in a court of competent jurisdiction * * Allen v. Smith (1911),
It is the conclusion of this court that under the provisions of Civ. R. 3(C) (4) a trial court, upon its own motion and without conducting a hearing, may transfer an action to an adjoining county “when it appears that a fair and impartial trial cannot be had in the county in winch the suit is pending.”
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
Concurrence Opinion
concurring. There is raised in this cause an issue which is coming before the court with increasing frequency, i. e., will a writ of prohibition issue to prevent a court from denying the relator “due process of law?” In all but the unusual case, that query should be answered in the negative.
There are undоubtedly some violations of some rights which rise to a level of constitutional insult sufficient to deprive a court of jurisdiction to act. However, the. survival of order in our administration of justice requires that such cases be few and far between.
This court and Courts of Appeals are entrusted with a constitutional grant of power to issue writs of prohibition. Flowing with that markedly important authority is a concomitant responsibility to recognize that lower courts must remain free to adjudicate; by the very nature of our system, the freedom to adjudicate necessarily includes the freedom to err.
The watchword in prohibition cases is “jurisdiction,” and jurisdiction is made of hardy stuff.