Opinion
No. 76-664
Decided January 26, 1977.
Prohibition — Jurisdiction of Court of Appeals — Does not extend to interlocutory matters, when.
APPEAL from the Court of Appeals for Hamilton County.
Appellee, a judge of the Court of Common Pleas of Hamilton County, presided over a cause in which appellant, Christine Whitney, was a defendant. The matter was set for trial on April 23, 1976. Plaintiff therein caused a subpoena to be issued to appellant requiring her attendance at the trial. The day before trial, appellant filed a motion to quash the subpoena because her "* * * appearance in court would be detrimental to her health." A hearing on this motion was held by appellee, at which time testimony was taken. At the conclusion of the hearing, the appellee overruled the motion and ordered appellant to appear for trial under penalty of contempt.
On April 28, 1976, appellant commenced the present action by filing a petition for writ of prohibition in the Court of Appeals to command the appellee to cease and desist from compelling her attendance at trial. Appellee filed a motion to dismiss which motion was granted on May 7, 1976. It is from that judgment that the cause was appealed to this court as a matter of right.
Messrs. Goodman Goodman and Mr. Stanley Goodman, for appellant.
Mr. Simon L. Leis, Jr., prosecuting attorney, and Mr. Arthur M. Ney, for appellee.
The question before this court is whether a writ of prohibition is a proper method by which appellant may seek relief from the appellee's order compelling her attendance at trial.
The order from which appellant seeks relief is interlocutory in nature in that it is dispositive of less than all the issues raised in the cause in which that order was issued. It is undeniable that the plaintiff in that cause had the right to subpoena the appellant (Civ. R. 45[E]), and further, that appellee had the discretionary power to consider the failure of a person to obey a subpoena served upon him as a contempt of court if such failure to appear was "* * * without adequate excuse * * *." Civ. R. 45(F). After a hearing at which appellant was afforded opportunity to present evidence and testimony with regard to her alleged inability to attend trial, appellee determined that there was not an adequate excuse for her non-attendance.
This court has explicitly stated that "[t]he 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." State, ex rel. Gross, v. Marshall (1974), 39 Ohio St.2d 92. See, also, State, ex rel. Staton, v. Common Pleas Court (1965), 5 Ohio St.2d 17.
No question has been raised concerning the jurisdiction of the Common Pleas Court over either the parties before it or the subject matter of the litigation. The order sought to be prohibited is interlocutory in nature and does not represent a usurpation of judicial power. The judgment of the Court of Appeals is, therefore, affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.