Decided November 12, 1947.
Supreme Court — Dismissal — Moot question — Mandamus and prohibition — Assignment of nonresident judges of Court of Appeals — Restraint of resident judges from proceeding in an appeal — Affidavit of disqualification dismissed and appeal heard before respondents served — Appeal of right and motion to certify filed in Supreme Court.
IN MANDAMUS and PROHIBITION.
On May 14, 1947, the relator filed in this court his petition in mandamus and prohibition, alleging that he is appellant in an appeal in the Court of Appeals for Hamilton county from a dismissal by the Court of Common Pleas of his petition for the recovery of damages for an alleged libel; that the appeal had been set for hearing on May 14, 1947; that he had filed an affidavit of disqualification under Section 1527, General Code, against each of the three judges of that Court of Appeals, on the ground of bias against him and prejudice in favor of appellees for reasons alleged in his affidavit; that such affidavit alleged he was informed that the Court of Appeals "would not grant his request for removal to another Court of Appeals"; that the docket in the appeal case shows the affidavit of disqualification was sent to the respondent chief justice; that at a hearing in Cincinnati on the affidavit of disqualification relator's witnesses were present but were not permitted to testify; and that the respondent chief justice, without bearing any evidence and without the presentation of counter-affidavits, dismissed the affidavit of disqualification, after permitting relator and counsel for the appellees to make opening statements and the three judges of the Court of Appeals to state they had no feeling in their own minds which would make it difficult for them to sit and hear the case.
The petition of the relator prays that a writ of mandamus issue commanding the respondent as chief justice of this court to sustain relator's affidavit of disqualification and assign three other judges of the Courts of Appeals of Ohio to take the place of the three judges of the Court of Appeals for Hamilton county and for other relief.
The petition prays also that an alternative writ of prohibition issue commanding the restraint of the judges of the Court of Appeals for Hamilton county from further proceedings in that court in the appeal.
The present proceeding is before this court on motion to dismiss the petition of the relator on the ground that the questions presented are moot.
Mr. George S. Hawke, in propria persona. Mr. Hugh S. Jenkins, attorney general, Mr. E.G. Schuessler, Mr. Carson Hoy, prosecuting attorney, and Mr. C. Watson Hover, for respondents.
No alternative writ of mandamus or prohibition was issued by this court in the present proceeding.
On May 14, 1947, relator filed a precipe in this proceeding, summonses were issued to the sheriffs of Hamilton and Franklin counties, returnable May 26, 1947, and sheriff's returns were made showing personal service on all the respondents on May 16, 1947, which was two days following the day relator's petition alleges the cause in which he was appellant was set for hearing by the Court of Appeals. The judges of the Court of Appeals had held a hearing in the appeal proceeding in that court before being served with summons in the present proceeding in this court.
This court will take into consideration the facts and conditions existing at the time it determines whether to issue a peremptory writ of mandamus. State, ex rel. Apple, v. Pence et al., Board of Education of Shelby County School District, 137 Ohio St. 569, 31 N.E.2d 841, approving and following Trumbull County Board of Education v. State, ex rel. Van Wye, 122 Ohio St. 247, 171 N.E. 241, and State, ex rel. Haines, v. Board of Education of Greene County School District, 131 Ohio St. 609, 3 N.E.2d 527.
It appears from the records of this court that, after the petition was filed in the present proceeding in mandamus and prohibition, an appeal as of right and a motion to certify the record were filed in this court from a judgment entered by the three judges of the Court of Appeals for Hamilton county in the case in which present relator was appellant in that court.
The writs sought by the relator will not issue in order to have a determination of questions which have become moot in the Court of Appeals. Miner v. Witt, City Clerk, 82 Ohio St. 237, 92 N.E. 21; Hughes v. County Board of Revision of Butler County, 143 Ohio St. 559, 56 N.E.2d 63; and State, ex rel. Snyder, a Taxpayer, v. Board of Elections of Lucas County, 146 Ohio St. 556, 67 N.E.2d 322.
The petition of the relator is dismissed.
TURNER, MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.
WEYGANDT, C.J., not participating.