Opinion
No. 37042
Decided March 21, 1962.
Mandamus — Remedy not available where clear legal right not shown — Proceeding for recovery of money judgment — Action at law available.
APPEAL from the Court of Appeals for Franklin County.
While serving a sentence in the Ohio Penitentiary, the appellant, Rolland Maloney, was removed therefrom by the sheriff of Allen County, under a capias issued by the Common Pleas Court of Allen County, to be tried in Allen County under an indictment charging appellant with being an habitual criminal.
Appellant instituted the instant action in mandamus in the Court of Appeals for Franklin County against the appellee, Sacks, Warden of the Ohio Penitentiary. Appellant alleges that he was removed from the penitentiary to the jail at Lima, pursuant to a capias issued by the Allen County Common Pleas Court; that the capias was not issued according to law and therefore his removal was contrary to Section 2941.41, Revised Code, which prohibits such removal without the approval and endorsement of the Governor; that the appellee was without authority to permit the sheriff to remove appellant due to the fact that the capias did not contain the Governor's signature; and that appellant was aggrieved by such removal. Appellant seeks relief under Section 2725.24, Revised Code, which provides that one who signs a warrant for the removal of a person committed to prison, except in certain instances named therein, shall forfeit to the aggrieved party $500.
The prayer of the petition is for a writ commanding the appellee to make a settlement in the amount of $500, since appellant has been aggrieved by appellee.
The Court of Appeals found that no grounds were shown for the allowance of a writ of mandamus and dismissed the action.
An appeal as of right brings the cause to this court for review.
Mr. Rolland Maloney, in propria persona. Mr. Mark McElroy, attorney general, and Mr. Aubrey A. Wendt, for appellee.
This action was not brought in conformity with Section 2731.04, Revised Code, which requires that an "application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying." Gannon v. Gallagher, Dir., 145 Ohio St. 170.
Appellant was removed from the penitentiary to the Allen County jail under one of the exceptions named in Section 2725.24, Revised Code, thus relieving the warden from liability thereunder. The section reads in part: "A person committed to prison, or in the custody of an officer for a criminal matter, shall not be removed therefrom into the custody of another officer, unless by legal process, or unless the prisoner * * * by order of the proper court, is removed from one place to another within this state for trial * * *." (Emphasis added.)
Furthermore, mandamus may not ordinarily be employed as a substitute for an action at law to recover money.
Appellant has not shown a clear legal right to the writ of mandamus.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, MATTHIAS, BELL, KERNS and O'NEILL, JJ., concur.
TAFT, J., concurs in the judgment.
KERNS, J., of the Second Appellate District, sitting by designation in the place and stead of HERBERT, J.