Opinion
No. 31578
Decided February 9, 1949.
Mandamus — Writ not issued to control discretion or as substitute for appeal — Probate Court dismissed application to remove guardian and appeal dismissed — Supreme Court sustained motion to strike mandamus petition from files.
IN MANDAMUS.
ON MOTION to strike.
On September 7, 1948, there was filed in this court a petition praying for a writ of mandamus ordering the respondent probate judge to remove the guardian of the relator.
The respondent filed a motion to strike the petition from the files as a sham pleading, supporting the motion with a memorandum which recites that the Probate Court dismissed an application to remove the guardian, that an appeal was taken to the Common Pleas Court and dismissed by relator's counsel, that a later application to remove the guardian was dismissed by the Probate Court and that an appeal was taken to the Court of Appeals which dismissed the appeal.
Relator filed in this court an affidavit contra the motion to strike, challenging all the memorandum statements as "incorrect and near perjury," except the statements, among others, that "on June 10, 1947, the Probate Court of Franklin county, Ohio, held hearings and on September 12, 1947, dismissed the application for removal" and that "thereupon, an appeal was taken in the Court of Appeals of Franklin county, Ohio, case No. 108307, which court rendered a decision dismissing the appeal on June 23, 1948 * * *."
The present cause was submitted on the motion to strike the petition from the files.
Mr. David T. Keating, for relator.
Mr. Troy A. Feibel, for respondent.
In addition to the admission in the affidavit that an appeal had been taken from the Probate Court to the Court of Appeals, counsel for relator in oral argument in this court admitted such procedure had been pursued.
The affidavit of relator admits that the Probate Court exercised discretion. The writ of mandamus will issue to compel the exercise of judicial discretion but not to control it. State, ex rel. Dunphy, v. Graham, Judge, 146 Ohio St. 547, 67 N.E.2d 321, and cases cited therein.
The writ of mandamus will not issue as a substitute for an appeal. Shelby v. Hoffman, 7 Ohio St. 450; State, ex rel. Cook, Supt., v. Court of Common Pleas, 144 Ohio St. 461, 59 N.E.2d 376; State, ex rel. Stein, v. Sohngen, Dir., 147 Ohio St. 359, 71 N.E.2d 483; 25 Ohio Jurisprudence, 1013, Section 34.
The motion to strike from the files is sustained and the petition is dismissed on authority of State, ex rel. Smith, v. Young, Judge, 137 Ohio St. 319, 29 N.E.2d 564.
Petition dismissed.
MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.
WEYGANDT, C.J., concurs in the judgment and in the per curiam opinion for the additional reason that, as frequently and consistently observed by this court, Section 12285, General Code, defining the function of the writ of mandamus, restates the common-law rule and prohibits use of the writ for the purpose of controlling judicial discretion.