Opinion
No. 31627
Decided March 16, 1949.
Mandamus — Expunging from journal of Court of Appeals entries dissolving corporations — Writ not available to relitigate same question or as substitute for appeal — Collateral attack of judgment — Dissolved corporations not qualified as relators.
IN MANDAMUS.
This proceeding in mandamus was instituted in this court, on relation of The Inland Properties Company, The Richmond Improvement Company and York Lake Company.
It is alleged in the petition that the relators "are corporations duly organized and existing under and by virtue of the laws of the state of Ohio," and that relators are and were the owners of the legal title to certain real estate described in detail in the petition.
The petition contains allegations that Peter Halliday instituted in the Court of Common Pleas of Cuyahoga county dissolution proceedings against those companies; that the court rendered judgments ordering the corporations dissolved; that the "aforementioned actions came into the Court of Appeals on law and fact" as cases Nos. 11062, 11061 and 11060, and were tried de novo in October 1930 before nonresident judges of the Court of Appeals assigned to sit in Cuyahoga county and hear the cases; that no "rendition orders" were ever made, signed or rendered by the nonresident judges of that court; and that, notwithstanding the fact the nonresident judges took no action in the cases and no judgments were rendered, three entries under date of November 3, 1930, appeared on the journal of the Court of Appeals.
Counsel plead in the petition that "in the belief that said entries were valid (since a court speaks through its journal) appeals were taken to the Supreme Court of Ohio," but motions to certify were overruled by that court; that the files in the cases were missing from the office of the clerk of courts for more than 12 years prior to January 1945, when the files were found and disclosed three "rendition orders" each signed only by "Willis Vickery, by G. B. D., Judge"; and that Judge Willis Vickery did not sit or hear the cases.
There are further allegations that the rendition orders dissolving the corporations were never file-marked or filed; that the rendition orders were noted on the appearance docket of the Court of Appeals after the files in the cases were found and returned to the office of the clerk of courts in January 1945; that the three companies were mortgagors of the properties described in the mandamus petition; and that the mortgagee, relying on the journal entries of the Court of Appeals, instituted foreclosure actions and judgments were rendered in favor of the mortgagee.
Attached to, incorporated in and made a part of the petition in mandamus is an exhibit which is a copy of one of the three journal entries, in which it is ordered that a copy of the order of dissolution be prepared, transferred to and filed in the office of the Secretary of State of Ohio.
The prayer of the petition is for a writ of mandamus commanding the respondents to expunge and obliterate from the journal of the respondent court the entries appearing under date of November 3, 1930, in the three cases.
The respondents demur to the petition.
Mr. Ralph L. Ammerman and Mr. John L. Maxwell, for relators.
Mr. Saul S. Danaceau and Mr. Harold O. Ziegler, for respondents.
Counsel filing the present petition in this court admitted in oral argument that motions had been filed in the Court of Appeals to expunge and obliterate the three entries appearing on the journal of that court, which motions were overruled, and that no appeals from such overriding were attempted. Such an admission by counsel is binding on a party.
Recapitulating, first, the petition alleges appeals were taken to this court to review the judgments which this proceeding in mandamus seeks to expunge and, second, no appeals were attempted from the overruling of the motions to expunge the throe entries from the journal of the Court of Appeals.
Where a plain and adequate remedy at law has been unsuccessfully invoked, the extraordinary writ of mandamus will not lie either to relitigate the same question or as a substitute for appeal. State, ex rel. Stanley, v. Cook, Supt., 146 Ohio St. 348, 66 N.E.2d 207, paragraphs 5 and 9 of the syllabus; 25 Ohio Jurisprudence, 1013, Section 34, and cases cited; State, ex rel. Dunphy, v. Graham, Judge, 146 Ohio St. 547, 67 N.E.2d 321.
A judgment rendered by an inferior court may not be collaterally attacked by a proceeding in mandamus. 23 Ohio Jurisprudence, 1146, Section 1003; State, ex rel. Walke, v. Industrial Commission, 140 Ohio St. 311, 313, 43 N.E.2d 282; State, ex rel. Barner, v. Marsh, Clerk, 121 Ohio St. 321, 168 N.E. 173.
It may also be noted that the three corporations having been dissolved by judgments which are valid and unreversed, the named relators are not qualified to maintain the present proceeding in mandamus.
The demurrer to the petition is sustained and writ denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.