Opinion
No. 37903
Decided October 2, 1963.
Mandamus — To compel court to act on matter filed — To exercise judicial discretion — Action requested on purported petition — Refusal to perform judicial function.
IN MANDAMUS.
Mr. Henry Clay Scott, for relator.
Mr. John S. Ballard, prosecuting attorney, and Mr. John D. Smith, for respondent.
This is an action in mandamus originating in this court whereby relator, William Vitoratos, is seeking to compel respondent to act on a purported petition to vacate a sentence imposed upon relator by the Juvenile Court of Summit County.
There is no question in the present case that a purported petition has been filed. So much respondent admits. Respondent denies, however, that such paper is a petition but he has failed to make any ruling to that effect in the case before him.
The sole question is whether a court has a mandatory duty to act within a reasonable time on what purports to be a petition filed therein or whether the court may simply ignore the purported petition on the basis that the court may think it is improper. This is not a question of compelling a certain course of conduct or acts or a control of discretion but is rather merely a question of compelling a court to act, which is one of the fundamental purposes of mandamus. Although judicial discretion cannot be controlled by mandamus, the exercise of such discretion can be compelled. 35 Ohio Jurisprudence (2d), 370, Mandamus, Section 97; and 35 American Jurisprudence, 25, Mandamus, Section 254.
There is no question, except under specific statutory provisions providing for the advancement of cases, that a litigant must wait his turn on the trial docket for the disposition of his case. However, this is not the question. Here respondent has failed to act not because the case was out of turn but because he believes that the purported petition is improper.
Relator has had what purports to be a petition pending in the court for over a year. In spite of requests by relator, the court has failed to act thereon because of its belief that the claimed petition does not constitute a petition. If the court is correct in that belief, it could readily dispose of the matter on its own motion. Under such circumstances, relator has a clear legal right to some action by the court.
Writ allowed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.