Summary
In State ex rel. Pajestka v. Faulhaber (1977), 50 Ohio St.2d 41, 4 O.O.3d 113, 362 N.E.2d 263, the Supreme Court of Ohio addressed a matter with a similar factual scenario.
Summary of this case from Chester Twp. v. Fraternal Order of PoliceOpinion
No. 76-1013
Decided April 27, 1977.
Actions — Mandamus — Motion for reconsideration, improper — Proper remedy.
APPEAL from the Court of Appeals for Cuyahoga County.
On July 10, 1975, appellants, Joseph P. Pajestka and Vivian Pajestka, filed a complaint in the Court of Appeals requesting the issuance of a writ of mandamus ordering appellee, Donald A. Faulhaber, as mayor, to enforce the zoning code of the city of Broadview Heights with respect to certain properties. On August 15, 1975, the court, having granted the alternate writ of mandamus, appointed a master commissioner to hear testimony on the matter and prepare a transcript for the court. On December 22, 1975, the court ordered by journal entry that the appellants file a brief on or before January 12, 1976. No brief was filed, and by journal entry dated June 23, 1976, the court dismissed the case.
Counsel for appellants, alleging that he never received proper notice of the several journal entries, including the entry dated December 22, 1975, filed a "Motion for Reconsideration Because of Failure of Due Process of Law" in the Court of Appeals. The motion was overruled on September 23, 1976.
The appeal is before this court as a matter of right.
Messrs. Cain Henn and Mr. Arthur L. Cain, for appellants.
Mr. Cecil P. Mauk, director of law, for appellee.
It is apparent that counsel for appellants filed his motion for reconsideration pursuant to App. R. 26, which prescribes the proper procedure for making application for reconsideration. However, App. R. 1 specifically states that the appellate rules govern procedure in appeals to courts of appeal from the trial courts.
In the instant cause, appellants brought a mandamus action in the Court of Appeals, invoking that court's original jurisdiction granted in Section 3, Article IV of the Ohio Constitution. Thus the appellants mistakenly attempted to file a motion not prescribed for a court having original jurisdiction.
The proper remedy for appellants in this situation is to file a motion for relief from judgment under Civ. R. 60(B)(5). This rule provides that a party may obtain relief from the final judgment, order or proceeding of a court for any reason justifying relief from the judgment, provided that such motion is made "within a reasonable time."
Since the appellants improperly requested relief from the order of the Court of Appeals, this court affirms the action of that court in overruling the appellants' motion for reconsideration.
Judgment affirmed.
O'NEILL, C.J., CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
HERBERT, J., concurs in the judgment.