Kansas Man Demands ‘Trial By Combat’ to Settle Custody Dispute

Yes, this really happened.

No, it does not have anything to do with my normal topic of business law, M&A, securities, and related issues.

Yes, I am going to write about it anyway – if nothing else, it’s an interesting bit of legal history.

The Des Moines Register reported this bizarre story on January 13, and before that the Carroll Times Herald. It was then (perhaps unsurprisingly) picked up by dozens of major publications and legal bloggers across the country. While Game of Thrones fans may familiar with the practice, invoked several times in the HBO’s smash-hit TV series, it may come as a surprise to you that the concept is not entirely fictional.

David Ostrom, 40, of Paola, Kansas, made the demand in a motion filed with an Iowa court, seeking to resolve a custody dispute. Noting that his ex-wife and her attorney have “destroyed [him] legally,” Ostrom wrote that:

I now wish to give them the chance to meet me on the field of battle, where I will REND THEIR SOULS from their corporal bodies

As for the legal basis for the trial by combat, in his court filings, Ostrom noted that trial by combat “has never been explicitly banned or restricted as a right in these United States” and that it has been used “as recently as 1818 in British Court.”

The judge in this case was clearly less amused by Ostrom’s antics than the rest of us are, writing in his ruling:

Until the proper procedural steps to initiate a court proceeding are followed, this court will take no further action concerning any motion, objection or petition filed by either party at this time

Oddly enough, this is not the first time that a litigant has demanded a trial by combat to resolve a dispute. In July of 2015, Richard Luthmann, a Staten Island attorney also demanded a trial by combat, which was also picked up by various legal news sites and bloggers here, here, here, and here. From the very beginning, it’s clear that we’re in for a colorful ride:

3. I make this affirmation in reply to the Plaintiff’s Opposition to the instant application, which can – when viewed in a light most favorable to opposing counsel – only be termed as a glorified comic book piled on top of pure and adulterated extortion wrapped in a transparent abuse of legal process.

But wait, there’s more.

Some more choice quotes and a historical tour of the history of trial by combat from that demand follow (NOTE: I cannot speak to the accuracy of the historical claims, but it at least sounds plausible.)

DEFENDANT DEMANDS TRIAL BY COMBAT

26. Defendant invokes the common law writ of right and demands his common law right to Trial By Combat as against Plaintiffs and their counsel, whom plaintiff wishes to implead into the Trial By Combat by writ of right.

THE HISTORY OF TRIAL BY COMBAT

27. Wager of battle, as the trial by combat was called in English, appears to have been introduced into the common law of the Kingdom of England following the Norman Conquest and remained in use for the duration of the High and Late Middle Ages. Quennell, Marjorie; Quennell, C. H. B. (1969) [1918], A History of Everyday Things in England (4 ed.), B. T. Batsford at p. 64.

43. In 1774, as part of the legislative response to the Boston Tea Party, Parliament considered a bill which would have abolished appeals of murder and trials by battle in the American colonies. It was successfully opposed by Member of Parliament John Dunning, who called the appeal of murder “that great pillar of the Constitution”. Shoenfeld, Mark (1997), “Waging battle: Ashford v Thornton, Ivanhoe and legal violence”, in Simmons, Clare, Medievalism and the Quest for the “Real” Middle Ages, Routledge, at p. 61.

44. The writ of right was the most direct way at common law of challenging someone’s right to a piece of real property. The criminal appeal was a private criminal prosecution instituted by the accuser directly against the accused. It was not, unlike the contemporary appeal, a proceeding in a court of superior jurisdiction reviewing the proceedings of a lower court.

45. Such a private prosecution was last conducted in the case of Ashford v. Thornton in 1818, as recorded in The Newgate Calendar. “Abraham Thornton”. The Newgate Calendar. The Ex-Classics Web Site. Pronouncing judgement in favor of the accused’s plea claiming the wager of battle, Justice Bayley of the King’s Bench said that: One of the inconveniences of this procedure is, that the party who institutes it must be willing, if required, to stake his life in support of his accusation.

46. The accusation was quickly withdrawn after this judgment. Parliament abolished wager of battle the following year, in 1819, and at the same time they also abolished the writ of right and criminal appeals.

TRIAL BY COMBAT IN THE UNITED STATES

47. At the times of the ratification of the Bill of Rights in 1791, trial by combat was not outlawed in any of the Thirteen Original United States (including the State of New York), all of whom inherited British common law upon independence in 1776.

54. The allegations made by Plaintiffs, aided and abetted by their counsel, border upon the criminal. As such, the undersigned respectfully requests that the Court permit the Undersigned to dispatch Plaintiffs and their counsel to the Divine Providence of the Maker for Him to exact His Divine Judgment once the Undersigned has released the souls of the Plaintiffs and their counsel from their corporeal bodies, personally and/or by way of a Champion.

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