Opinion
No. 36097
Decided December 2, 1959.
Prohibition — Writ not available where other adequate remedy — Not substitute for appeal — Will contests.
APPEAL from the Court of Appeals for Cuyahoga County.
By this action in prohibition, brought originally in the Court of Appeals, relator seeks a writ prohibiting the respondent court and judges thereof from exercising jurisdiction and determining the issue presented in two will contests.
It appears from the petition that relator filed in the Probate Court a paper writing executed December 21, 1955, purporting to be the last will of one Joseph P. Slamey, deceased, and in which relator was named a beneficiary, together with an application to probate the document as the will of the decedent; that thereafter a paper writing executed on March 8, 1958, purporting to be the last will of such decedent and in which relator was not made a beneficiary was filed in the Probate Court, together with an application to probate such document as his last will; and that the latter document was admitted to probate as the will of decedent.
It appears further from the petition that an action was brought contesting the validity of the aforesaid probated will; that on the following day another action was brought contesting the validity of the same will; that approximately four months thereafter relator brought an action, which is now pending, contesting the validity of the same will, alleging that the purported will executed December 21, 1955, is the last will of decedent; that a jury was impaneled in each of the first two above-mentioned contests, and a verdict was returned in each case sustaining the validity of the aforesaid probated will; and that the contests were conducted without notice to relator.
Relator alleges that he informed a respondent judge of the pendency of his contest and promptly filed with the respondent court a motion in each of the first two contests to stay the entering of any judgment on the verdict or, if judgment had been entered, to vacate same and dismiss the contest for the reason that the court did not have jurisdiction on and after December 14, 1958, which date was six months after the purported will was admitted to probate, to determine the will-contest issue presented in the contest, in which all interested persons were not made parties. Both motions were overruled.
The prayer of relator's petition is for a writ prohibiting respondents from exercising any jurisdiction to determine the issue in the first two aforementioned contests or to execute or give any validity to any judgments relating thereto, except that of dismissals.
The respondents demurred to the petition for the reasons that it does not state sufficient facts to constitute a cause of action; that there is a misjoinder of parties respondent; and that it appears that the Common Pleas Court had jurisdiction over the parties and subject matter.
The Court of Appeals sustained the demurrers and dismissed the petition.
An appeal as of right brings the cause to this court for review.
Messrs. Roudebush, Adrion, Brown, Corlett Ulrich, for appellant.
Messrs. Diehm Farber, Mr. Ray T. Miller, Mr. John J. Fuerst and Mr. A.H. Dudnik, for appellees.
The question presented is whether the Court of Appeals was correct in sustaining the demurrers. It appears from the petition that the Court of Common Pleas exercised jurisdiction in the first two actions to contest the will prior to the filing of the petition in the instant case; that relator, who would have been a proper party ( Kennedy, Exr., v. Walcutt, 118 Ohio St. 442, 161 N.E.2d 336), was not made a party, nor did he attempt to be made a party to those contests, except that he did file motions therein to stay the entering of any judgments or to vacate judgments if entered. There is no allegation in the petition that any appeals were taken from the judgments or orders in those two contests. Relator's contest involving the same document is still pending in the trial court.
Relator argues here that prohibition is a proper remedy since the Common Pleas Court had no jurisdiction to render judgments in the first two contests. The only effect that judgments in those two contests could have adverse to relator would be if they were offered as a bar to his pending contest.
If, as relator argues, the Common Pleas Court had no jurisdiction in those two contests, its judgments therein would necessarily be void and could not bar his action. If the trial court should hold otherwise in his contest, he will then have an adequate remedy by way of appeal.
A writ of prohibition will ordinarily not be allowed where there is an adequate remedy in the ordinary course of the law and may not be employed as a substitute for appeal.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.