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State, ex Rel. v. Roach

Supreme Court of Ohio
Mar 19, 1930
122 Ohio St. 117 (Ohio 1930)


No. 22011

Decided March 19, 1930.

Writ of prohibition — Purpose and scope — Jurisdiction — Accounting, misapplication of corporate funds and receivership — Cross-petitioner, refused affirmative relief, cannot deny court's jurisdiction and maintain prohibition — Writ not substitute for error proceedings, when.

1. A writ of prohibition is an extraordinary judicial writ, issuing out of a court of superior jurisdiction, to prevent an inferior court or tribunal from usurping jurisdiction with which it is not legally invested.

2. A writ of prohibition will be awarded only when the relator has no other adequate available remedy.

3. The courts of common pleas of Ohio have jurisdiction to hear and determine issues where parties seek an accounting and to determine whether officers of a corporation are misapplying or misappropriating funds of the corporation, and in a proper case, as an incident thereto, to appoint a receiver of such corporation.

4. Where a defendant in a suit files a cross-petition asking affirmative relief upon which issues are joined and the court hears and determines such issues adversely to such defendant, such defendant will not be heard thereafter to deny the jurisdiction of the court or to institute an action for a writ of prohibition to prevent such judgment from being carried into execution.

5. A writ of prohibition is not available as a substitute for error proceedings to correct alleged errors made by a court of inferior jurisdiction after the cause in such lower court has proceeded to final judgment and where the cause was within the jurisdiction of that court.


This is a suit filed in this court invoking its original jurisdiction in prohibition. The relator, Edwin M. Brickell, is the owner of certain real estate in Stark county, which he leased to the A.H. Slusser Investment Company on December 24, 1925, the lease containing the usual provisions for payment of rental and care of property, and the usual forfeiture conditions in default of payment of rent and compliance with conditions.

On April 4, 1926, the Slusser Company assigned the lease to the Massillon Arcade Market Company, apparently without the consent of Brickell, as required by the original lease. Thereafter the stockholders of the Market Company became involved in controversies, and one of the stockholders on January 9, 1928, filed an action in the court of common pleas praying for an audit and an accounting, and seeking to hold the officers liable for dissipation and misappropriation of funds, and asking for the appointment of a receiver during the pendency of that controversy. A receiver was appointed and conducted the business for a period under court orders, and later, on November 24, 1928, by order of court, ceased to operate the business. The rents were paid by the Market Company to Brickell during its occupancy, and accepted by him without protest or question. The receiver continued to pay the rents until November 1, 1928. The taxes were paid by the receiver prior to October, 1928. Brickell was not made a party to the suit at the time it was instituted, but was made a party in June, 1928, at a time when the receiver made application for authority to sell the leasehold and other assets. On July 10, 1928, Brickell filed his answer and cross-petition in the suit, which answer and cross-petition made all of the material allegations of the petition filed in this court in which he seeks the writ of prohibition; and the prayer of his cross-petition was for a forfeiture of the lease and the restoration of the property to him. Answers were filed to the cross-petition by various parties to the suit, and an issue was made up, which was heard and decided on October 18, 1928, and the court found "that the claim of forfeiture set up by the said Edwin M. Brickell is unjust, unreasonable and inequitable and contrary to law, and that said claim is therefore denied; and that said lease is a valid, binding and subsisting lease and part of the property and assets belonging to the Massillon Arcade Market Company.

Brickell excepted to the finding and judgment, gave notice of appeal, and an appeal bond was fixed in the sum of $1,000. The appeal was never perfected. Later, on December 31, 1928, another issue was made up between claimants of personal property installed in said leased premises, which were classed as fixtures by Brickell, and, an issue being made up, the court decided adversely to Brickell, and held that the property did not constitute fixtures, and the costs were, in part, adjudged against Brickell. Brickell excepted to the judgment of court, but neither appeal nor error was prosecuted. On January 7, 1929, Brickell again made application for the discharge of the receiver and the return of the property, and for an order permitting him to collect the rentals, alleging that the receiver and the lessee were in default in the payment of rentals due under the lease. The matter was heard upon evidence and decided adversely to Brickell, to which Brickell excepted. Brickell did not prosecute error or appeal. Thereafter, on September 27, 1929, Brickell again made application for an order of the court forfeiting and terminating the interest of the lessee in the leasehold property on the ground of nonpayment of rents and taxes and failure to keep the property insured, and for an order of court quieting his title to the real estate, and, this being heard on November 1, 1929, the application was overruled, to which Brickell excepted. A bill of exceptions was allowed, signed, and filed, but it does not appear that error was further prosecuted.

On December 12, 1929, upon motion of Brickell, leave was given to sue the receiver, though it does not appear in the record whether such suit was brought, or what the character of such proposed suit was. It was, however, stated in argument that an ejectment suit is pending to oust the lessee and the receiver from the property.

These are not by any means all of the facts alleged in the petition, but they are undisputed facts, and constitute all of the facts material to a disposition of the cause. Relator prays for an alternative or temporary writ of prohibition restraining the common pleas judges of Stark county and the receiver from further proceeding in said receivership or from exercising further dominion over relator's premises, pending a hearing of this cause, and that defendants be required to show cause why relator should not have a writ of prohibition. In his petition relator asserts five legal propositions as the basis of his relief:

First, that the court was without jurisdiction to appoint a receiver, for the reason that the appointment of a receiver was the principal relief sought, and that the action should have been against the officers of the corporation instead of the corporation itself.

Second, that the common pleas court was without jurisdiction for the alleged reason that the Massillon Arcade Market Company had no right, title, or interest in the leased property, because the Slusser Company had not complied with the terms of the lease relating to an assignment thereof.

Third, that the stockholder who instituted the original receivership suit had disposed of his stock on June 19, 1928, and that the action could therefore be no longer maintained.

Fourth, that the common pleas court was without jurisdiction to continue the possession of the receiver after defaults in the payments of rentals and taxes and the failure to pay the premiums on insurance and to make certain repairs on leasehold property, all of which were expressly provided as conditions of the lease.

Fifth, the relator is deprived of his legal and property rights, and is without adequate remedy at law.

Messrs. Lynch, Day, Fimple, Pontius Lynch, for relator.

Messrs. Amerman Mills, for defendants.

Many of the facts alleged in the petition in the instant case which are not carried into the statement are such that, if proven, would show the relator has rights which entitle him to a remedy in some court of competent jurisdiction in this state. It does not follow that the remedy lies in invoking the original jurisdiction of this court to prohibit some other court from passing upon the facts of his controversy and from either giving him or denying him the relief he seeks. He may only be heard in this court upon showing that such other court is without jurisdiction to either give or deny such relief. It is shown, not by the allegations of his petition, but by the answer and by the evidence submitted, that he was himself a suitor in the court of common pleas, and that by cross-petition he invoked the jurisdiction of that court, and that, after hearing the evidence and arguments of counsel, the decision of the court was adverse to him. After such adverse decision, he invoked the same jurisdiction on three separate and distinct occasions, and was again as often denied the relief he sought.

We shall not assume, neither shall we permit the relator to attempt to prove in this case, that the court of common pleas erred. For the purposes of this case we shall assume that the common pleas court did not err. The allegations of fact in the cross-petition of Brickell filed in the court of common pleas were such that, if proven, and no defense were made which would avoid them or render the relief he sought inequitable, would have entitled him to the relief he prayed. He was not prosecuting any ejectment suit which would necessarily be submitted to a jury; he was invoking the equitable jurisdiction of the court by intervening in an equity suit and praying equitable relief. The court heard and decided the equitable issue, and found that "the claim of forfeiture set up by the said Edwin M. Brickell is unjust, unreasonable and inequitable and contrary to law and that said claim is therefore denied." That it was recognized by Brickell as an equitable issue is shown by the fact that he gave notice of appeal from the judgment of October 18, 1928, and asked that the amount of an appeal bond be fixed, but did not thereafter perfect the appeal. We shall not determine whether or not the trial court erred in that judgment. The case was open to review that judgment by either appeal or error in the Court of Appeals, and, later, in this court. It may be suggested, in passing, that, in the ordinary course of judicial administration in this state, both reviewing courts would have, in turn, considered and decided such review more than a year before the instant case was filed in this court.

Not content with one adverse judgment, he returned to the fray several other times, seeking the same relief by affirmative pleading in somewhat different and varied form, and each time received an adverse decision, from which no error or appeal was prosecuted. It must be manifest, therefore, that he now seeks the extraordinary remedy of prohibition in the exercise of the original jurisdiction of this court as a substitute for a review, of which he did not avail himself, and when the way was open to him at least four different times.

Relator alleges five separate legal propositions as the basis of his relief. The first of these propositions, concisely stated, is that the petition filed by the stockholder in the court of common pleas did not state a cause of action. More particularly, he claims in the instant case that the petition originally filed in the court of common pleas praying the appointment of a receiver did not state facts sufficient to give that court jurisdiction to take the property in custodia legis. That petition is an exhibit to the petition in the instant case. If this court should examine that petition and should find that it did not state a cause of action which would entitle the plaintiff to the relief sought, and the appointment of a receiver, and on that ground should sustain relator's claims of want of jurisdiction, we would thereby establish a precedent which would justify a prohibition suit in this court to prohibit the trial courts of this state from further proceeding in any case where it might be claimed that the petition did not state a cause of action. The statement of such a proposition is its own refutation.

The second and fourth legal propositions urged are practically identical, and are based upon the claim that, even after taking the property in custodia legis, the court could no longer retain such custody through its receiver after the terms of the lease were not complied with by the receiver. The answer to this is that the court heard and decided that very issue as an equitable issue, and held that it would be inequitable to declare a forfeiture, and that Brickell did not prosecute error from such judgments repeatedly rendered. We think it cannot be seriously contended that the common pleas court did not have jurisdiction to hear and determine the question of forfeiture, both before and after the receivership.

If such a legal proposition is debatable, it must still be held that the relator affirmatively invoked the jurisdiction of that court and received the judgment of that court, and he is therefore estopped at this time to complain of the judgment of that court otherwise than in a proceeding for review.

The third proposition is that the stockholder who filed the original receivership suit disposed of his stock on June 19, 1928, and that the action should therefore have terminated. If this proposition requires any answer, it is sufficient to say that the stockholder's suit was for the benefit of the plaintiff stockholder, and for all other stockholders similarly situated, and that, the suit once begun, and new rights having accrued by reason of the suit, and new problems having arisen by reason of that suit, the court would not be bound to dismiss the suit upon a showing that the stockholder no longer desired it to be continued.

The fifth proposition is that the relator is deprived of his legal and property rights, and is without adequate remedy at law. This proposition is included in the discussion of the others. He had an adequate remedy, and pursued it in a court of competent jurisdiction. He had a further remedy upon being defeated by having the judgment of that court reviewed. It has been so often held that a writ of prohibition cannot be made to serve the purposes of a writ of error in order to correct the mistakes of the lower court in deciding questions of law within its jurisdiction that we will not cite the previous decisions of this court which have frequently so held. It has likewise often been held by this court that, where a party invokes the jurisdiction of a court of competent jurisdiction, and receives an adverse judgment, he is estopped from invoking other remedies which might otherwise have been open to him. The petition must be dismissed.

Petition dismissed.


Summaries of

State, ex Rel. v. Roach

Supreme Court of Ohio
Mar 19, 1930
122 Ohio St. 117 (Ohio 1930)
Case details for

State, ex Rel. v. Roach

Case Details


Court:Supreme Court of Ohio

Date published: Mar 19, 1930


122 Ohio St. 117 (Ohio 1930)
170 N.E. 866

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