Opinion
No. 19261
Decided February 9, 1926.
Writ of prohibition — Function to keep inferior courts and tribunals within jurisdiction — Writ does not lie to prevent anticipated erroneous judgment — Adequate remedy by error proceedings.
1. The function of a writ of prohibition is to restrain inferior courts and tribunals from exercising jurisdiction beyond that legally conferred, and it will be awarded only when there is no other available adequate remedy.
2. Where a court has full and complete jurisdiction of the subject-matter of an action therein pending, a writ of prohibition will not be awarded to prevent an anticipated erroneous judgment. An adequate remedy is available by proceeding in error.
IN PROHIBITION.
This is an original action in this court, wherein relators seek a writ of prohibition to restrain the common pleas court and the probate court of Marion county from making an order granting any injunction, or otherwise preventing the levying of an execution upon the property of certain persons in that county, named as judgment debtors, for the collection of a judgment theretofore procured against them by relators herein in the court of common pleas of Cuyahoga county.
Issue is made by demurrer, and the question thereby presented is whether the facts stated in the petition warrant the issuance of such writ of prohibition. The following is a concise statement of the facts presented:
In an action then pending in the court of common pleas of Cuyahoga county, the relator B. Alfred Carmody, on February 2, 1925, recovered a judgment in the sum of $1,035.42 against Albert A. Starner and Emma C. Starner. On a subsequent day in February a motion was filed in the court by the defendants, asking for a vacation of the judgment and for leave to file an answer setting up their defense to the claim of plaintiff, which motion, upon hearing, evidence being offered by the defendants in support thereof, was overruled. Error was not prosecuted to procure a reversal of such finding and decree, and on April 2, 1925, an execution was issued to the sheriff of Marion county, and by him levied upon the property of the defendants. On May 1, 1925, relators Brophy and Vickery recovered a judgment against the same defendants in the sum of $165.92, and on the same day an execution was issued to the sheriff of Marion county, with instructions to levy the same upon property of the defendants. On May 13, 1925, the defendants in the cases referred to instituted two actions in the common pleas court of Marion county, and procured a temporary injunction from Charles L. Justice, judge of said court, restraining the sheriff of that county from levying upon or disposing of any of the property of the judgment debtors by virtue of such execution. Thereafter the execution was returned by the sheriff to the clerk of courts of Cuyahoga county because of the injunction. On July 1, 1925, relators Brophy and Vickery recovered a further judgment of $111.98 against the same defendants in the Cuyahoga county common pleas court; all of such judgments being based on promissory notes executed by Alfred A. Starner and Emma C. Starner to B. Alfred Carmody, a part thereof having been transferred for value, before maturity, to relators Brophy and Vickery. Executions have been issued to the sheriff of Marion county for the purpose of satisfying said judgments out of the property of the judgment debtors named, but the relators aver that they have reason to and do believe that the defendant Charles L. Justice, as judge of the common pleas court, will grant temporary injunctions restraining the sheriff from levying upon or disposing of any of the property of such judgment debtors by virtue of the execution, and that, if said judge be absent from the county, such injunction will be granted by Louis B. McNeal, as probate judge of said county.
Mr. D.J. Brophy and Messrs. Vickery Vickery, for relators.
Messrs. Carhart Warner, for defendants.
Relators seek to have this court issue a writ of prohibition to prevent the court of common pleas from granting a writ of injunction.
The office of the writ of prohibition is clearly stated by the text-writers on the subject, and has been announced by this court in numerous cases. The writ of prohibition is a specific remedy of an extraordinary character, and issues because of the absence or inadequacy of ordinary remedies. Its proper scope and purpose is to keep inferior courts and tribunals within the limits of their own jurisdiction, and prevent their encroachment upon the jurisdiction of other tribunals.
The question presented, therefore, in every instance where the issuance of a writ of prohibition is prayed, is whether it clearly appears that the court or tribunal whose action is sought to be prohibited has no jurisdiction of the cause which it is attempting to adjudicate, or is about to exceed its jurisdiction. It is never an appropriate remedy for the correction of errors, and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate. This is but a concise restatement of the rule heretofore applied by this court in similar actions, among which may be cited State, ex rel. Nolan, v. Clen Dening, 93 Ohio St. 264, 112 N.E. 1029; State, ex rel. Garrison, v. Brough, 94 Ohio St. 115, 113 N.E. 683, and Kelley, Judge, v. State, ex rel. Gellner, 94 Ohio St. 331, 114 N.E. 255.
Concededly, the court of common pleas has jurisdiction of the subject-matter of the action in injunction now pending in that court. The court of common pleas is fully authorized to determine whether the facts are such as to authorize the issuance of an injunction and the application of the case of Darst v. Phillips, 41 Ohio St. 514. If a party thereto is aggrieved by the judgment entered by that court, and believes the same to be erroneous, he has a full and adequate remedy in error, and is therefore not entitled to the extraordinary writ of prohibition.
Writ denied.
JONES, DAY, ALLEN, KINKADE and ROBINSON, JJ., concur.