Opinion
No. 23916
Decided March 22, 1933
Prohibition — Writ not substituted for error proceeding — Application made subsequent to rendition of final judgment — Jurisdiction of Columbus Municipal Court — Forcible entry and detainer, and forfeiture under contract of purchase.
1. A writ of prohibition is not available as a substitute for error proceeedings.
2. A writ of prohibition will not issue upon application made subsequent to the rendition of final judgment by the court whose action is sought to be prohibited.
ERROR to the Court of Appeals of Franklin county.
This action originated in the Court of Appeals of Franklin county on a petition in prohibition filed by the plaintiffs in error against the defendants in error, seeking to prohibit them from proceeding in a certain forcible entry and detainer suit filed by one W.J. Frasch, plaintiff, against Stella K. Frasch, defendant, in the municipal court of Columbus, Ohio. The petition recited in substance that the defendant unlawfully and forcibly detained, and does still unlawfully and forcibly detain, plaintiff from possession of certain described premises, situated in the city of Columbus, Franklin county, Ohio. The defendant filed her answer, denying the allegations of the petition, and alleging that the premises were occupied by virtue of a contract of purchase. To this answer the plaintiff filed a reply, admitting the existence of the contract, and further alleged that the contract contained a forfeiture clause which was breached by the defendant. The defendant demurred, attacking the court's jurisdiction. The demurrer was overruled, and the case proceeded to trial, being heard by the municipal court upon the petition, answer, reply, and the evidence. The court rendered judgment for restitution as prayed for in the petition. The plaintiff in error thereafter filed a petition for writ of prohibition in the Court of Appeals.
The Court of Appeals found that the plaintiff was not entitled to a writ of prohibition, and denied such application. The case comes into this court upon the filing of a petition in error as a matter of right, the prohibition case having been instituted in the Court of Appeals.
Mr. Alex S. Dombey and Mr. Stephen Mavis, for plaintiffs in error.
Messrs. Ervin, O'Donnell Bow, for defendants in error.
The plaintiffs in error have stated no question of law, either in their brief or upon oral argument, which could not have been decided with equal justice to the litigants on error proceedings from the judgment of the municipal court. The case would then have had both a hearing in the Court of Appeals and a hearing on motion to certify in this court, if so desired. The question of defect of parties defendant could have been raised by demurrer or answer. Not having been raised, it was waived.
It has been repeatedly stated by this court that a writ of prohibition is not available as a substitute for error proceedings to correct alleged errors made by a court of inferior jurisdiction. It may not be employed as a substitute for error and for the available ordinary adequate remedies. State, ex rel. Cleveland Telephone Co., v. Court of Common Pleas of Cuyahoga County, 98 Ohio St. 164, 120 N.E. 335; State, ex rel. Brickell, v. Roach, Recr., 122 Ohio St. 117, 170 N.E. 866; Marsh v. Goldthorpe, Mayor, 123 Ohio St. 103, 174 N.E. 246; State, ex rel. Knights Templar Masonic Mutual Aid Assn., v. Common Pleas Court of Meigs County, 124 Ohio St. 493, 179 N.E. 415.
Final judgment was entered against the plaintiff in error Stella K. Frasch, and then, and not until then, did she file her application for a writ of prohibition in the Court of Appeals. A writ of prohibition will be issued only to prevent the commission of a future act, and not to undo an act which is already performed. State, ex rel. Brickell, v. Roach, supra; Marsh v. Goldthorpe, Mayor, supra.
It is argued by the plaintiffs in error that this is an important question which should be settled by this court. However the plaintiffs in error saw fit to go to trial in the municipal court upon the issues of the case, gambling upon the outcome of the controversy.
Under this record, conceding the importance of the question presented, the plaintiffs in error had an adequate remedy by error proceedings under the statute.
Judgment affirmed.
WEYGANDT, C.J., DAY, STEPHENSON, JONES and MATTHIAS, JJ., concur.
KINKADE, J., not participating.