Summary
In State ex rel. Witsamen v. Maumee Valley Guidance Ctr., Inc. (1983), 6 Ohio St.3d 26, 6 OBR 22, 450 N.E.2d 1180, we held that failure to pursue an appeal in the underlying case prevents a collateral attack on the judgment in mandamus under res judicata.
Summary of this case from State ex rel. Schneider v. Board of Education of North Olmsted City School DistrictOpinion
No. 82-1123
Decided July 13, 1983.
Appellate procedure — Collateral attack on judgments may not be made, when — Allegation of lack of jurisdiction — Res judicata provides bar, when.
APPEAL from the Court of Appeals for Defiance County.
Appellant, L.R. Witsamen, while a resident of Defiance County, was removed from his employment with appellee, Maumee Valley Guidance Center, Inc., on April 17, 1978. The State Personnel Board of Review disaffirmed the removal. Appellee then appealed to the Court of Common Pleas of Franklin County which reversed the board of review's disaffirmance. That judgment was affirmed by the court of appeals on September 4, 1980.
Appellant had argued unsuccessfully before both the court of common pleas and court of appeals that the appeal from the State Personnel Board of Review should have been brought in Defiance County. However, appellant did not attempt to appeal the judgment of the court of appeals to this court.
On June 2, 1981, appellant brought this action in mandamus in the Court of Appeals for Defiance County seeking an award of back pay. He alleged that the judgments of the Franklin County Court of Common Pleas and Court of Appeals were void, and that the order of the board of review remained in full force and effect.
The court of appeals dismissed the complaint and the cause is now before this court upon an appeal as of right.
Messrs. Lucas, Prendergast, Albright, Gibson, Newman Gee, James E. Melle Co., L.P.A., Mr. James E. Melle and Ms. Brenda B. Alleman, for appellant.
Sanford, Fisher, Fahey, Boyland Schwarzwalder Co., L.P.A., and Mr. Richard P. Fahey, for appellee.
Appellant seeks to collaterally attack the judgments of the court of common pleas and court of appeals. Appellant contends that the judgments are void and subject to collateral attack because the Franklin County courts lacked subject matter jurisdiction over the appeal.
In support of this argument appellant relies on our decision in Davis v. Bd. of Review (1980), 64 Ohio St.2d 102 [18 O.O.3d 345], wherein we held that an appeal from a decision of the State Personnel Board of Review involving the removal or reduction in pay for disciplinary reasons, of a member of the classified civil service, must be brought in the court of common pleas of the county in which the employee resides.
Our decision in Davis would have supported an argument that the appeal from the State Personnel Board of Review was erroneously brought in Franklin County had that argument been raised on appeal, as it was in Davis. However, appellant's claim that the courts erroneously deviated from the prescribed statutory procedure does not amount to a claim that they lacked subject matter jurisdiction.
"`[J]urisdiction is a matter of power and covers wrong as well as right decisions. * * *
"`However, every wrong decision, even by an administrative body, is not void as being beyond the so-called jurisdiction of the tribunal, even though voidable by proper judicial process. Logic compels the conclusion that this is true where a specifically prescribed course of immediate judicial review or judicial examination is provided within the same act, for the relief of those persons claimed to be aggrieved by illegal or improper action of an administrative tribunal, especially where such persons fail to take advantage of the specific judicial review or examination so provided.'" State, ex rel. Stough, v. Bd. of Edn. (1977), 50 Ohio St.2d 47, 50 [4 O.O.3d 116], quoting Garverick v. Hoffman (1970), 23 Ohio St.2d 74, 79 [52 O.O.2d 371].
Appellant perfected an appeal to the court of appeals but failed to pursue his right of appeal to this court. Therefore, the judgment of the court of appeals is final and the claims of error raised by appellant herein are barred by the principle of res judicata. State, ex rel. Henderson, v. Civil Service Comm. (1980), 63 Ohio St.2d 39, 41 [17 O.O.3d 24]; State, ex rel. Stough, v. Bd. of Edn., supra; State, ex rel. Bingham, v. Riley (1966), 6 Ohio St.2d 263, 264 [35 O.O.2d 424].
Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and J.P. CELEBREZZE, JJ., concur.