Opinion
No. 74-281
Decided July 10, 1974.
Prohibition — Jurisdiction of Court of Appeals — Does not extend to interlocutory orders, when — Discovery proceedings — Order concerning taking of depositions and deposit of security for costs.
The jurisdiction of the Court of Appeals to issue a writ of prohibition does not extend to an interlocutory matter arising during the proceedings in a cause before an inferior tribunal, which has jurisdiction of the cause, unless such interlocutory matter involves a usurpation of judicial power.
APPEAL from the Court of Appeals for Shelby County.
Appellee, a judge of the Court of Common Pleas of Shelby County, presided over a case in which appellant Gross was plaintiff and appellant Freed acted as his attorney. On October 3, 1973, appellants began to take the deposition of a witness in that case. At the end of the day the deposition had not been completed, and it was continued to October 17, 1973.
On October 11, 1973, the defendant filed a motion alleging that the plaintiff and his attorney were "attempting to discover information which is not relevant nor pertinent," and requesting that the taking of any further depositions be suspended "until such time as the taking of said depositions may be made personally before the court * * *." Resumption of the interrupted deposition, scheduled for October 17, 1973, was continued pending a hearing on the motion.
The motion was heard on October 29, 1973, on which date appellee filed an order and judgment entry requiring that any depositions taken in the case by attorney Freed for Gross be conducted before a referee appointed by the court; making attorney Freed responsible for all costs incurred in such depositions, including compensation for the referee and other court personnel involved; and requiring Freed to deposit $150 as security for the costs.
On November 21, 1973, appellants filed a complaint in the Court of Appeals seeking a writ of prohibition staying the proceedings until a final determination be made, and barring appellee from enforcing his order of October 29, 1973. A motion to dismiss the complaint was filed by appellee on November 28, 1973, which motion was sustained on December 17, 1973. Pursuant to appellants' application for reconsideration, the court reaffirmed its decision dismissing the complaint, and, on January 29, 1974, filed a judgment entry to that effect. It is from that judgment that the cause was appealed to this court, as a matter of right.
Messrs. Gaier, Pratt, Freed Hallows and Mr. James H. DeWeese, for appellants.
Garmhausen, Kerrigan, Elsass Co., L.P.A., and Mr. Thomas W. Kerrigan, for appellee.
The question before this court is whether a writ of prohibition is a proper procedure by which appellants may seek relief from appellee's order of October 29, 1973. This court shares the opinion of the Court of Appeals that that extraordinary remedy is inappropriate in this case, and we therefore affirm its judgment.
The present controversy stems from an order of the Court of Common Pleas relating to the conduct of discovery proceedings by one of the parties in litigation before it. Such orders have been specifically held interlocutory, and thus not subject to immediate appellate review, Kennedy v. Chalfin (1974), 38 Ohio St.2d 85; Klein v. Bendix-Westinghouse Co. (1968), 13 Ohio St.2d 85. Addressing the question of when issuance of a writ of prohibition is proper, this court, in the first paragraph of the syllabus in State, ex rel. Staton, v. Common Pleas Court (1965), 5 Ohio St.2d 17, held that:
"The jurisdiction of the Court of Appeals to issue a writ of prohibition does not extend to an interlocutory matter arising during the proceedings in a cause before an inferior tribunal, which has jurisdiction of the cause, unless such interlocutory matter involves a usurpation of judicial power."
The jurisdiction of the Court of Common Pleas to hear the case is undisputed. Appellants contend that appellee's order of October 29, 1973, represents a "usurpation of judicial power" (referred to in Staton, supra) and thus that prohibition will lie. Appellee, on the contrary, argues that that order was an exercise by the court of the discretion vested in it by Civ. R. 26(C). That rule grants to the court in which an action is pending the discretion to:
"* * * make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense [resulting from discovery procedures] * * *."
It is the opinion of this court that the issue in this case is, as appellee suggests, an exercise (whether proper or improper, we need not decide at this time) by the trial court of its discretion to insure fair discovery.
"* * * Prohibition is not concerned with the exercise of discretion by an inferior tribunal having jurisdiction of the subject matter and the parties in a cause before it. That issue is for the determination of a reviewing court." State, ex rel. Staton, supra ( 5 Ohio St.2d 17), at page 22.
Upon the basis of the foregoing unequivocal statements of the law, which we find no reason to abandon, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE and W. BROWN, JJ., concur.