Opinion
No. 82-1536
Decided December 23, 1982.
Prohibition — Pretrial order requiring attendance of witnesses at trial — Writ not available, when.
APPEAL from the Court of Appeals for Cuyahoga County.
Appellant, Dow Chemical Company (Dow), is a defendant in a lawsuit presently pending in the Court of Common Pleas of Cuyahoga County, in which Central National Bank (CNB), the plaintiff in the underlying action, seeks damages for the repair of the brick masonry facade of its building. The action was ultimately assigned to Judge Robert B. Ford, appellee herein.
Appellee, a retired jurist, is currently sitting by assignment pursuant to Section 6(C), Article IV of the Ohio Constitution.
On August 16, 1982, CNB filed a motion requesting the issuance of an order compelling Dow to produce at trial eight nonresident employees and one nonresident retired employee, each of whom allegedly possesses factual, engineering or scientific knowledge concerning the development and marketing of the product which CNB claims to have caused extensive damage to its building. During the course of discovery, six of these employees were brought to Cleveland, Ohio, at Dow's expense, whereupon depositions were conducted for a period encompassing over fifty days, producing in excess of ten thousand pages of testimony.
On September 21, 1982, appellee sustained the motion. Thereafter, in a supplemental order on reconsideration, appellee stated as follows:
"* * * It has been estimated that reading at normal speed, eight hours a day, five days a week, without lost time due to objections, 10,000 pages of depositions would require 41 weeks of trial time. No trial to this court nor to any Ohio jury should have one-tenth that reading time.
"The inherent power of the court over the parties and the conduct of the trial must give this court the power to make the witnesses attend or to apply sanctions to Dow for their failure to attend. To repeat, Central National Bank must assume the costs of their attendance."
From this order, appellant initiated an original action in the court of appeals whereby a writ of prohibition was sought to prevent appellee from enforcing the September 21, 1982 order. Appellee filed a motion to dismiss, which motion was granted on the basis that Dow possessed an adequate remedy in the ordinary course of law by way of appeal.
The cause is now before this court on an appeal as of right.
Messrs. Weston, Hurd, Fallon, Paisley Howley, Mr. Louis Paisley, Mr. Hilary S. Taylor, Messrs. Rivkin, Leff, Sherman Radler, Mr. Warren S. Radler, Mr. Bruce D. Drucker and Mr. Matthew W. Cockrell, for appellant.
Mr. John T. Corrigan, prosecuting attorney, Mr. Thomas P. Gill and Mr. Patrick Carroll, for appellees.
Messrs. Squire, Sanders Dempsey, Mr. Daniel J. O'Loughlin and Mr. John E. Lynch, Jr., urging affirmance, for amicus curiae Central National Bank.
The issue presented herein is whether a writ of prohibition should issue to prevent appellee from enforcing his September 21, 1982 order. It is well-settled that in order for prohibition to lie, three requirements must be satisfied: "(1) the court or officer against whom it is sought is about to exercise judicial or quasi-judicial power; (2) the exercise of such power is unauthorized by law; and (3) it will result in injury for which no other adequate remedy exists." Ohio Bell v. Ferguson (1980), 61 Ohio St.2d 74, 76 [15 O.O.3d 117]. See, also, State, ex rel. Henry, v. Britt (1981), 67 Ohio St.2d 71, 73 [21 O.O.3d 45]; State, ex rel. Bell, v. Blair (1975), 43 Ohio St.2d 95, 96 [72 O.O.2d 53].
This court, in the first paragraph of the syllabus in State, ex rel. Staton, v. Common Pleas Court (1965), 5 Ohio St.2d 17 [34 O.O.2d 10], held that:
"The jurisdiction of the Court of Appeals to issue a writ of prohibition does not extend to an interlocutory matter arising during the proceedings in a cause before an inferior tribunal which has jurisdiction of the cause, unless such interlocutory matter involves a usurpation of judicial power."
The order from which appellant requests relief is, as appellee suggested below, interlocutory in nature since it is dispositive of less than all of the issues raised in the trial court. Additionally, the record clearly demonstrates that appellee acquired jurisdiction over Dow and the subject matter of the litigation. The question, therefore, remains whether the subject order constitutes a usurpation of judicial power.
In Hale v. State (1896), 55 Ohio St. 210, at page 213, this court stated:
"The difference between the jurisdiction of courts and their inherent powers is too important to be overlooked. In constitutional governments their jurisdiction is conferred by the provisions of the constitutions and of statutes enacted in the exercise of legislative authority. That, however, is not true with respect to such powers as are necessary to the olderly and efficient exercise of jurisdiction. Such powers, from both their nature and their ancient exercise, must be regarded as inherent. They do not depend upon express constitutional grant, nor in any sense upon the legislative will. The power to maintain order, to secure the attendance of witnesses to the end that the rights of parties may be ascertained, and to enforce process to the end that effect may be given to judgments, must inhere in every court or the purpose of its creation fails. Without such power no other could be exercised." (Emphasis added.) See, also, State, ex rel. Butler, v. Demis (1981), 66 Ohio St.2d 123, 128 [20 O.O.3d 121].
In view of the foregoing, we conclude that appellee lawfully exercised judicial discretion (whether proper or not can be determined by a reviewing court) over Dow in his pretrial order. Moreover, this court has consistently stated that "[p]rohibition is not concerned with the exercise of discretion by an inferior tribunal having jurisdiction of the subject matter and the parties in a cause before it. That issue is for the determination of a reviewing court." State, ex rel. Staton, supra, at 22; State, ex rel. Gross, v. Marshall (1974), 39 Ohio St.2d 92, 94 [68 O.O.2d 54].
Accordingly, since appellee acquired jurisdiction over the party to whom the order has been directed, as well as the subject matter of the pending litigation, and since the order sought to be prohibited is interlocutory in nature and does not constitute a usurpation of judicial power, the court of appeals properly dismissed the action.
Therefore, for all of the foregoing reasons, the judgment of the court of appeals is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.