holding that the court's discretion in settling procedural matters is not unlimited, and "some showing of excusable neglect' was a necessary prelude to the filing of the (untimely) answer"
How later courts described this case
- holding that the court's discretion in settling procedural matters is not unlimited, and "some showing of excusable neglect' was a necessary prelude to the filing of the (untimely) answer"
- addressing the Ohio Rules of Civil Procedure and proving that, “[h]owever hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement because the only fair and reasonable alternative thereto is complete abandonment.”
- addressing the Ohio Rules of Civil Procedure and providing that, “[h]owever hurried a court may be in its efforts to reach the merits of a controversy, the integrity of procedural rules is dependent upon consistent enforcement . . . .”
- holding that some showing of excusable neglect is “a necessary prelude” to filing an answer out of time
Written by the judges who cited it.
The opinion
William B. Brown, J.,
dissenting in case No. 79-1087. I dissent in case No. 79-1087 because I believe that it should be permissible for opposing counsel to discredit a lay witness’ testimony, by introducing that witness’ prior expressions of opinion which contradict the inferences which might be drawn from his testimony. Thus, I would overrule Schneiderman v. Sesanstein (1929), 121 Ohio St. 80 , and Cottom v. Klein (1931), 123 Ohio St. 440 .
The principal practical value of the “opinion rule” is that it can operate as a control on trial procedure, requiring counsel to elicit facts by the most specific questions possible. * McCormick on Evidence (2 Ed.), 69, Section 35. If this is its principal *216 practical value, then it would appear inappropriate to apply it to out-of-court statements, since trial control as to the form of such expressions is impossible. Additionally, since the prior expression of opinion is not being offered for its truth, but to show its inconsistency with the witness’ present testimony, even the theoretical justification for the opinion rule, i.e., to improve testimonial objectivity, can not support its application herein. McCormick, supra, at pages 41-42, Section 18, 69-70.
It is true that a jury may ignore a limiting instruction and consider a prior inconsistent expression of opinion for its truth. But this risk is also present when prior inconsistent statements of “fact” are proven extrinsically for impeachment purposes. Courts, however, do not categorically exclude prior inconsistent statements of fact; instead, they run the risk that the jury might ignore a limiting instruction. Courts run this risk in order to minimize the likelihood that a verdict will be based on untruthful testimony. Whether the prior inconsistency be in the form of “fact” or “opinion,” I think the jury should hear it. In short, a trial court should ordinarily defer to the jury’s ability to follow a limiting instruction, rather than run the risk that a verdict will be based on the testimony of an untruthful witness. In the unusual situation where the prejudicial effect of the prior expression of opinion outweighs its impeachment value, the trial court of course would have the discretion to exclude it. Since, I do not think this was the situation herein, I respectfully dissent.
Wigmore asserts that the difference between so-called fact and opinion is not a difference between opposites or contrasting absolutes, but a mere difference in degree with no recognizable demarcation line. Thus, Wigmore believes that the opinion rule should go no further than to exclude opinions as superfluous when more concrete statements could be resorted to. 7 Wigmore on Evidence (Chadboum Rev.), Sections 1918, 1919.