Opinion
No. 87-464
Decided February 24, 1988.
Mandamus — Complaint properly dismissed, when.
APPEAL from the Court of Appeals for Pickaway County.
This cause originated as a mandamus action filed by relator-appellant, Paul L. Freshour, in the court of appeals, to compel that certain action be taken concerning alleged illegal notary acts of respondent-appellee, Roger Kline.
Appellant asserts that he presented proof to William Ammer, a judge of the Court of Common Pleas of Pickaway County, that respondent Kline committed illegal notary acts by notarizing unsigned affidavits. Appellant alleges that he sent Judge Ammer a "Request and Motion that Defendant Roger Kline's Notary Commission * * * be revoked for illegal acts against the Notary Commission of Ohio[.] The Plaintiff Paul L. Freshour and the Honorable United States District Court, Marconi Blvd[.], Columbus, Ohio and for the Statute and Law to be applied for the Defendant's Criminal intent and actions."
It appears Judge Ammer responded to this request or a similar request in a letter dated April 22, 1985, in which he noted that he did not believe there was any evidence that appellant's motion should be well-taken. The judge noted that if appellant could present evidence indicating that the original affidavit was not signed, then he would give the matter further consideration. He also noted that, since appellant had only raised the matter about an unsigned copy, appellant's motion would not be filed with the clerk's office.
Thereafter, appellant filed the instant complaint for a writ of mandamus on August 22, 1986. A peremptory complaint in mandamus was also filed in this action. The court of appeals, upon respondent's motion to dismiss, found that the complaint for a writ of mandamus failed to state a claim upon which relief could be granted and dismissed the case.
The cause is now before this court on an appeal as of right.
Paul L. Freshour, pro se. William H. Harsha, prosecuting attorney, for appellee.
Appellant essentially requests that this court take jurisdiction of the instant matter and order Judge Ammer of the Court of Common Pleas of Pickaway County to act upon his request and motion. The record fails to show that there was a case filed or pending in the court of common pleas upon which the court of appeals could order Judge Ammer to proceed. Therefore, the court of appeals was correct in stating that appellant failed to state a ground upon which relief could be granted.
Appellant attempted to make Judge William Ammer a party to this action for the first time upon appeal to this court. In any event, the result herein would remain the same.
Even if this were not so, appellant has failed to sustain his burden of establishing that a writ of mandamus should issue by demonstrating that he has a clear legal right to the relief prayed for. State, ex rel. Pressley, v. Indus. Comm. (1967), 11 Ohio St.2d 141, 40 O.O. 2d 141, 228 N.E.2d 631.
The judgment of the court of appeals is hereby affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, LOCHER, HOLMES, DOUGLAS, WRIGHT and H. BROWN, JJ., concur.