Summary
affirming dismissal of mandamus complaint on the basis that relators had an adequate remedy at law by way of an action in replevin to recover personal property seized under a search warrant
Summary of this case from STATE v. BECKOpinion
No. 79-1092
Decided January 23, 1980.
Mandamus — To compel return of personal property — Complaint dismissed, when — Adequate remedy at law.
APPEAL from the Court of Appeals for Cuyahoga County.
This is an appeal as of right from the dismissal of a complaint for a writ of mandamus by the Court of Appeals.
Relators, Robert and Storey Luke, are seeking the return of personal property seized from their apartment in relation to a search warrant issued on March 10, 1979, by the Court of Common Pleas of Cuyahoga County, upon affidavit of respondent Michael J. Corrigan, Assistant Prosecuting Attorney of Cuyahoga County. The complaint alleged that personal property other than that specified in the search warrant was taken.
The Court of Appeals granted respondents' motion to dismiss for reason that relators had an adequate remedy at law by way of an action in replevin.
Messrs. Dachman Dachman and Mr. Jerome M. Dachman, for appellants.
Mr. John T. Corrigan, prosecuting attorney, and Mr. George J. Sadd, for appellees.
The issue herein is whether appellants have an adequate remedy at law by way of replevin for the return of their personal property obtained in connection with a regularly issued search warrant, where some of the property taken was not specified in the warrant.
Appellants argue that replevin is not an adequate remedy because under R.C. 1919.01(D) an affidavit is necessary which requires a statement, inter alia, "[t]hat such property was not taken in execution on an order or judgment against the plaintiff, or***that such property is exempt from such execution under the laws of this state." Thus, appellants contend that to avail themselves of replevin under R.C. 1919.01 would necessitate the commission of perjury.
It is to be noted that R.C. 2737.01 et seq. also specifies requirements for replevin actions. R.C. 2737.02(D), in detailing the requirement of an affidavit, states, in pertinent part, that the affidavit must show as to the property taken "[t]hat it was not taken on process issued against the plaintiff***."
Neither R.C. 1919.01(D) nor 2737.02(D) precludes appellants from submitting the required affidavits because of threat of perjury. The affidavit requirements imposed by these statutes are for the purpose of negating that the property was taken pursuant to an order, judgment or process against the plaintiff. The search warrant herein was directed to law enforcement agencies rather than against appellants.
As we stated in State, ex rel. Vitoratos, v. Whiddon (1965), 3 Ohio St.2d 52, "[i]n the exercise of its discretion, this court will ordinarily refuse a writ of mandamus where relator has an adequate remedy in the ordinary course of law."
For reason of the foregoing, the judgment of the Court of Appeals, dismissing the complaint, is affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.
I cannot concur with the majority here in that requiring a private citizen from whom property has been taken to file a replevin action requiring a bond and other attendant costs is not an adequate remedy at law. I would allow the writ.