Opinion
No. 34092
Decided October 27, 1954.
Prohibition — Writ not available where other adequate remedy — Not substitute for appeal — Not available to prevent anticipated erroneous judgment.
IN PROHIBITION.
The Central Stores Company, relator in this proceeding in prohibition instituted originally in this court, brought an action in the Common Pleas Court of Mahoning County against one Jacobson, secretary of a local labor union, and others, seeking an order limiting the number of pickets at the company's place of business and governing their conduct during the course of picketing. The cause was assigned to respondent herein, Maiden, Jr., Judge, for hearing.
The defendants in that action filed an answer and cross-petition requesting an order requiring the company to submit to an election and, if the election results show defendant union to be the bargaining agent desired by a majority of the company's employees, to engage in collective bargaining with the union, and for other equitable relief.
The company filed a demurrer to the answer and cross-petition on the ground that the Common Pleas Court has no jurisdiction of the subject matter of the cross-petition, contending that the National Labor Relations Board has exclusive jurisdiction of such matters. The demurrer was overruled and the cause set for hearing.
The prayer of the petition in the instant action is for a writ prohibiting the respondent judge from taking further action with regard to the affirmative relief prayed for in the cross-petition.
The respondent has filed a demurrer to the petition on the ground that it does not state sufficient facts to constitute a cause of action in prohibition, and also a motion to dismiss the petition on the grounds that the Common Pleas Court having taken cognizance of the cause retains jurisdiction for all purposes, and that a writ of prohibition cannot be made the substitute for appeal. Respondent has also filed a motion to attach to the petition in prohibition a copy of the answer and cross-petition in the former action, for the reason that the petition does not present the real issue before the court.
Messrs. Stanley, Smoyer Schwartz, Mr. Carl Clark, Messrs. Harrington, Huxley Smith and Mr. Eldon S. Wright, for relator.
Mr. Harry H. Hull, for respondent.
The motion to attach the answer and cross-petition to the petition in prohibition is allowed and it is unnecessary to pass on the motion to dismiss the petition inasmuch as the court is disposing of the case on the demurrer.
The determinative question presented is whether, under the facts, the company is entitled to a writ of prohibition. The writ will ordinarily be awarded where there is no other adequate remedy and will not be awarded as a substitute for appeal or to prevent an anticipated erroneous judgment. State, ex rel. Winnefeld, v. Court of Common Pleas, 159 Ohio St. 225, 112 N.E.2d 27.
The demurrer to the petition is sustained and the writ is denied.
Writ denied.
WEYGANDT, C.J., MIDDLETON, TAFT, HART, ZIMMERMAN, STEWART and LAMNECK, JJ., concur.