Summary
In State ex relKlein v. Chorpining, 6 Ohio St.3d 3, 450 N.E.2d 1161 (1983), the Supreme Court of Ohio considered a writ of prohibition based on the transfer-of-jurisdiction principle that the trial court lost jurisdiction when the appeal was filed.
Summary of this case from State, Ex rel. Collins v. KilbaneOpinion
No. 83-151
Decided July 13, 1983.
Prohibition — Appellate procedure — Courts — Trial court retains jurisdiction over its judgments as well as proceedings in aid of same, when — Contempt — Filing of notice of appeal does not operate as stay, when — R.C. 2505.09 and Civ. R. 62 (B).
IN PROHIBITION.
Peter Klein, relator, was one of several defendants in a civil action commenced in the Court of Common Pleas of Ashland County. Judgment was entered against all defendants on July 27, 1982. Plaintiffs began proceedings in aid of judgment on August 3, 1982 by sending notice of a deposition to relator's counsel of record. Relator did not appear for the deposition and filed his notice of appeal on August 12, 1982. No stay of execution was applied for nor any supersedeas bond given.
Plaintiffs filed a motion to compel discovery against relator on September 3, 1982. Relator did not appear at the hearing held on September 13, 1982. The court ordered that relator make himself available for deposition within twenty days. He did not comply.
On October 12, 1982, plaintiffs moved that relator be found in contempt of court. Relator did not appear at the hearing held on October 25, 1982. By entry of November 4, 1982, Judge Paul L. Chorpening, respondent, found relator in contempt and ordered that he make himself available for a deposition. Relator did not comply.
On November 29, 1982, plaintiffs filed an affidavit and a motion for a warrant. Respondent ordered that a bench warrant be issued for relator's arrest. Relator was arrested on or about January 25, 1983, was incarcerated, and was released on bond. He commenced this original action in prohibition on January 28, 1983 to prevent Judge Chorpening and the court of common pleas from proceeding further in the matter.
Mr. Robert M. Draper and Mr. Mark Sladoje, Jr., for relator.
Messrs. Wilson, Murray, Anderson Vercillo and Mr. Joseph Murray, for respondents.
The issuance of a writ of prohibition is dependent upon proof of the following conditions: (1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists. Ohio Bell v. Ferguson (1980), 61 Ohio St.2d 74, 76 [15 O.O.3d 117]. It is conceded that respondents are about to exercise judicial power. Relator contends that respondents' actions were unauthorized by law because they lost jurisdiction over the subject matter and the person when he filed his notice of appeal.
Civ. R. 62 (B) permits appellants to obtain a stay of execution of judgment or a stay of proceedings in execution of judgment upon posting a supersedeas bond. R.C. 2505.09 clearly states:
"No appeal shall operate as a stay of execution * * * until a supersedeas bond is executed by the appellant to the adverse party with sufficient surety and in such sum * * * as is directed by the court making the order which is sought to be superseded * * *."
Until and unless a supersedeas bond is posted the trial court retains jurisdiction over its judgments as well as proceedings in aid of the same. See McMillen v. Watts (1950), 67 Ohio Law Abs. 33, appeal dismissed (1951), 154 Ohio St. 502 [43 O.O. 433].
Civ. R. 69 permits judgment creditors to obtain discovery in aid of execution. A writ of execution is not a prerequisite to such relief. Civ. R. 5 (B) permits service to be made upon a party's attorney where such party is known to be represented by an attorney of record, as was relator. Therefore, notice of the proceedings in execution of judgment and of the consequent proceedings in contempt was given "in the manner provided in these rules," pursuant to Civ. R. 69.
Furthermore, with regard to respondent's finding of contempt, R.C. 2705.09 states that "[t]he judgment and orders of a court or officer made in cases of contempt may be reviewed on appeal." Relator therefore has a right of appeal. This court has consistently held that prohibition will not be used as a substitute for appeal. State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52 [67 O.O.2d 61].
Relator has failed to meet all the conditions necessary for the issuance of a writ of prohibition. The writ is therefore denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, HOLMES, C. BROWN, and J.P. CELEBREZZE, JJ., concur.
LOCHER, J., not participating.