Opinion
No. 27135
Decided January 25, 1939.
Prohibition — Writ not available where another remedy adequate — Or to prevent anticipated erroneous judgment — Writ not substitute for appeal — Jurisdiction of one of several Common Pleas judges to determine controversy.
APPEAL from the Court of Appeals of Montgomery county.
This is an appeal as of right from the judgment of the Court of Appeals of Montgomery county dissolving an alternative writ of prohibition and dismissing the action originally filed in that court, after hearing on the petition, evidence, stipulation and arguments of counsel.
A skeleton recital of the facts alleged in the petition will be ample in the present review.
Prior to the beginning of the January, 1938, term, the judges of the Court of Common Pleas of Montgomery county adopted rules of practice for that court, Rule 26 of which provides:
"The equity and criminal dockets of this court shall rotate each term among all the judges in accordance with schedules set forth in entries signed by a majority of the judges.
"The civil docket shall at all times be administered by not less than three judges and shall rotate in accordance with schedules set forth in entries signed by a majority of the judges.
"The right to make assignments of specific cases contrary to the adopted schedules is reserved by a majority of the judges of the court."
At the January, 1938, term, relators-appellants, with other persons, were defendants in an action, which they allege to be in equity, which sought to impress a trust in favor of the plaintiff in that action upon building and loan association deposits and upon real estate within the jurisdiction of the Common Pleas Court of Montgomery county, when the equity docket of that court was in the jurisdiction of Honorable Null M. Hodapp, one of the six judges of that court.
During the January term Judge Hodapp issued an injunction against the defendants and others, forbidding the transfer of building and loan deposits.
The answer of the defendants was filed in the Common Pleas Court during the April, 1938, term, and the cause was assigned for trial before Judge Charles Lee Mills, another of the judges of that Court of Common Pleas.
During the April, 1938, term, counsel for plaintiff gave notice that he would insist that the cause be tried before Judge Hodapp on an alleged claim that one of the defendants had violated the injunction theretofore issued by that judge.
Prior to the date for assignment the original papers in the cause were duly transferred from the files of the clerk of courts to Judge Charles Lee Mills, who was assigned to hear the cause. At the hearing, plaintiff not appearing in person or by counsel, defendants moved for default judgment, which motion was overruled by Judge Mills, who found that a reply should be filed by the plaintiff and set a day therefor, to which exceptions were saved by defendants.
Plaintiff thereafter filed a reply, and also a motion asking that Judge Hodapp appoint a referee to take testimony and render an accounting, which motion was assigned for hearing and in which the defendants participated only to deny the jurisdiction of Judge Hodapp to appoint a referee.
Relators-appellants, who were defendants, contended that Judge Mills had exclusive jurisdiction and, claiming that Judge Hodapp assumed jurisdiction to appoint a referee, to consider the cause and to take testimony therein, sought a writ of prohibition to prevent Judge Hodapp from proceeding in that cause.
Messrs. Swaney Creager, for appellants.
Messrs. Legler Murray and Mr. W.S. Rhotehamel, for appellee.
The writ of prohibition will not lie when the relator has another adequate remedy. State, ex rel. Brickell, v. Roach, Recr., 122 Ohio St. 117, 170 N.E. 866; State, ex rel. Nolan, v. ClenDening, 93 Ohio St. 264, 112 N.E. 1029.
The writ of prohibition is not available as a substitute for a proceeding on appeal. Silliman v. Court of Common Pleas, 126 Ohio St. 338, 185 N.E. 420; State, ex rel. Young, v. Morrow, Judge, 131 Ohio St. 266, 2 N.E.2d 595; State, ex rel. Nicklaus, v. McClelland, Judge, 132 Ohio St. 447, 8 N.E.2d 565; State, ex rel. Frasch, v. Miller, Judge, 126 Ohio St. 287, 185 N.E. 193.
The Court of Common Pleas is competent to determine its own jurisdiction and a writ of prohibition will not issue to prevent an anticipated erroneous judgment. State, ex rel. Industrial Commission, v. Holt, Judge, 134 Ohio St. 25, 15 N.E.2d 543; State, ex rel. American Rolling Hill Co., v. Court of Common Pleas, 133 Ohio St. 24, 10 N.E.2d 633; State, ex rel. B.F. Goodrich Co., v. Wanamaker et al., Judges, 128 Ohio St. 421, 191 N.E. 763; State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430.
Furthermore it should be noted that the difficulty here involved is largely an administrative one that could have been avoided if the judges of the Court of Common Pleas of Montgomery county had availed themselves of the salutary provisions of Section 1558, General Code, relating to the designation of one of their number as chief justice to superintend, classify and distribute the business of the court.
The question whether rule 26 limits the power of the judges of the Court of Common Pleas of Montgomery county, the question of the right to trial by jury or whether the cause is one in equity, and all other questions raised by relators-appellants, can be reviewed upon appeal to the Court of Appeals, and therefore that court was not in error in denying the writ of prohibition.
Judgment affirmed.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS and HART, JJ., concur.