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State, ex Rel. v. Court

Supreme Court of Ohio
Jun 16, 1943
49 N.E.2d 761 (Ohio 1943)


No. 29449

Decided June 16, 1943.

Mandamus — Writ may compel tribunal to proceed, but not to correct errors — Orders or judgment of trial court not controlled by writ, when.

1. A writ of mandamus is an appropriate remedy to compel an inferior tribunal to proceed in a matter within its jurisdiction, but cannot be invoked to correct errors of judgment. ( State, ex rel. Morgenthaler, v. Crites, 48 Ohio St. 460, approved and followed.)

2. Where an action is pending and undetermined in a court of competent jurisdiction and such court is proceeding to discharge its functions, no other court has authority, by writ of mandamus, to control the orders or judgment of the court wherein the cause is pending. Any party aggrieved by the judgment has a full and complete remedy at law.

APPEAL from the Court of Appeals of Cuyahoga county.

This cause had its origin and was tried in the Court of Appeals upon the pleadings and the evidence; the relief sought was a writ of mandamus to compel the Court of Common Pleas of Cuyahoga county to re-classify, as an action at law, a cause pending in that court in which relatrix, Julia McCamey, is plaintiff and Harry F. Payer, one of the respondents, is defendant; also a writ of prohibition to prevent the court from appointing a referee in that action.

The record discloses substantially these facts: The respondent Harry F. Payer, an attorney at law, represented the relatrix before the Industrial Commission of Ohio and recovered a substantial award in her behalf growing out of the death of her husband; relatrix subsequently filed an action in the Court of Common Pleas of Cuyahoga county wherein she was plaintiff and Payer was defendant; the cause was docketed as an action at law and numbered 444-449; the basis of that action was the claim that the defendant Payer had wrongfully withheld a large sum of money belonging to the plaintiff out of the award from the Industrial Commission; the prayer of the petition was for a money judgment in the sum of $2,938, together with interest.

Numerous pleadings were filed by the defendant Payer. The issues were finally joined by the petition, the third amended answer and counterclaim and the reply. Prior to the filing of the third amended answer and counterclaim the case was placed upon the pretrial docket, came on for hearing, and upon application of defendant Payer was transferred to the equity docket. The third amended answer and counterclaim admits the withholding of the sum set forth in the petition from the award recovered and asserts that such sum was withheld by virtue of a release signed by the plaintiff therein; that such sum was less than the fair and reasonable compensation for the services rendered; and it is sought to impress a lien upon the funds in the possession of the defendant Payer.

The reply asserts that the counterclaim is barred by the statute of limitations and that the release was secured by misrepresentation and fraud.

The petition in the instant case alleges that the issues made by the pleadings are still before the Court of Common Pleas of Cuyahoga county for determination; that the classifying of the case as an equity case and the transferring thereof to the equity docket deprived plaintiff of her constitutional right of trial by jury; that should a referee be appointed she will be called upon to furnish security for costs which would be prohibitive and which she would be unable to furnish; that she therefore would be without access to the courts for redress of a wrong; that the action is one at law and that no equitable principles are involved.

The Court of Appeals upon the hearing denied the application.

The cause is here upon an appeal as of right.

Mr. Lawrence A. Tucker and Mr. Martin J. Monahan, for relatrix.

Mr. William J. Corrigan and Messrs. Payer, Bleiweiss Cook, for respondents.

The sole question for determination is, did the Court of Appeals err in its conclusions and judgment?

Although the relatrix prays for a writ of mandamus and a writ of prohibition, this case must stand or fall upon her right to the issuance of a writ of mandamus for the reason that if the Common Pleas Court is commanded to restore the cause pending therein to the law side of the court no authority exists for the appointment of a referee. The statute grants authority to appoint a referee only in cases in which the parties are not entitled to a trial by jury. (Section 11476, General Code.)

Mandamus is a statutory proceeding and is provided for in Section 12283 et seq., General Code.

Section 12283, General Code, provides:

"Mandamus is a writ issued, in the name of the state, to an inferior tribunal, * * * commanding the performance of an act which the law especially enjoins as a duty resulting from an office * * *."

Section 12285, General Code, provides:

"The writ may require an inferior tribunal to exercise its judgment, or to proceed to discharge any of its functions, but it cannot control judicial discretion."

Section 12287, General Code, provides:

"The writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law * * *."

In State, ex rel. White, v. City of Clevelavd, 132 Ohio St. 111, 5 N.E.2d 331, this court said:

"A writ of mandamus will not be issued except to command the performance of a specific duty enjoined by law, nor will it be issued where there is a plain and adequate remedy at law."

In the case of State, ex rel. First Natl. Bank, v. Village of Botkins, ante, 437, it was held in paragraph one of the syllabus:

"To entitle a relator to a writ of mandamus, the record must disclose affirmatively that there is no plain and adequate remedy in the ordinary course of the law. In the absence of such showing the writ will be denied."

Our attention will be first directed to the question, "Has the relatrix a plain and adequate remedy at law?"

In the case at bar there is no claim that the Court of Common Pleas of Cuyahoga, county has not acted. The gist of the complaint is that the court has acted erroneously. If that court is in error in proceeding with the cause as one in equity when in fact it is an action at law, the relatrix has a full and complete remedy by proceedings on appeal.

The writ of mandamus cannot be made the substitute for a writ of error.

In State, ex rel. Morgenthaler, v. Crites, 48 Ohio St. 460, 28 N.E. 178, syllabus three reads as follows:

"The remedy by mandamus, while appropriate to compel an officer to proceed in a judicial or quasi-judicial matter confided by law to his jurisdiction, cannot be invoked to correct his errors or control his discretion."

As we view this case the acts of which the relatrix, complains are but errors of judgment, if they are errors at all, in a proceeding confided by law to the determination of the court in which the action is pending.

Where an action is pending and undetermined in a court of competent jurisdiction, this court has no authority to control or indicate what judgment should be rendered by such court upon any question submitted in such cause. On the contrary that court must be left free to enter such orders and judgment as it deems just and proper under the facts and the law. Any party aggrieved by the judgment of the trial court is granted a full and adequate remedy at law.

The relatrix upon this record is not entitled to a writ of mandamus.

We are of the opinion, therefore, that the Court of Appeals did not err in the conclusions reached; that the relatrix has a plain and adequate remedy at law and the judgment of that court denying the writ should be and hereby is affirmed.

Judgment affirmed.


WILLIAMS, J., not participating.

Summaries of

State, ex Rel. v. Court

Supreme Court of Ohio
Jun 16, 1943
49 N.E.2d 761 (Ohio 1943)
Case details for

State, ex Rel. v. Court

Case Details


Court:Supreme Court of Ohio

Date published: Jun 16, 1943


49 N.E.2d 761 (Ohio 1943)
49 N.E.2d 761

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