Opinion
Case No. 13-CA-116
05-12-2014
DANIEL L. MONK Relator v. JUDGE THOMAS M. MARCELAIN Respondent
For Relator DANIEL MONK, PRO SE Chillicothe Correctional Institution For Respondent KENNETH W. OSWALT Licking County Prosecutor By: ANTHONY W. STOCCO Assistant Prosecuting Attorney
JUDGES:
Hon. William B. Hoffman, P.J.
Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
OPINION
CHARACTER OF PROCEEDING: Writ of Procedendo JUDGMENT: Dismissed APPEARANCES: For Relator DANIEL MONK, PRO SE
Chillicothe Correctional Institution
For Respondent KENNETH W. OSWALT
Licking County Prosecutor
By: ANTHONY W. STOCCO
Assistant Prosecuting Attorney
Hoffman, P.J.
{¶1} Relator, Daniel L. Monk, has filed a complaint for Writ of Procedendo. Relator requests Respondent Judge Thomas M. Marcelain be ordered to rule on a motion filed in the trial court on July 23, 2013. On December 18, 2013 Respondent ruled upon the motion. Respondent has filed a motion to dismiss the instant Petition because his ruling upon the motion has made the petition moot.
{¶2} To be entitled to a writ of procedendo, "a relator must establish a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of law." Miley, supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St.3d 461, 462. The Supreme Court has noted, "The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be." State ex rel. Davey v. Owen, 133 Ohio St. 96, *106, 12 N.E.2d 144, * *149 (1937).
{¶3} The Supreme Court has held procedendo will not issue where the requested relief has been obtained, "Neither procedendo nor mandamus will compel the performance of a duty that has already been performed." State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668 (Ohio,2000).
{¶4} Because Respondent has issued a ruling on Relator's motion, the request for a writ of procedendo has become moot. For this reason, Respondent's Motion to Dismiss is granted. By: Hoffman, P.J. Wise, J. and Baldwin, J. concur