Summary
In Miller v. Court of Common Pleas (1944), 143 Ohio St. 68, a dispute had arisen as to which of two courts had jurisdiction of a divorce and alimony action and relator sought to prohibit one of the courts from proceeding.
Summary of this case from State, ex Rel. Balson, v. HarnishfegerOpinion
No. 29768
Decided March 22, 1944.
Divorce and alimony — Jurisdiction of Courts of Common Pleas concurrent — Court first acquiring jurisdiction entitled to adjudicate all issues — Writ of prohibition issued to prevent second court assuming jurisdiction.
IN PROHIBITION.
This proceeding in prohibition was instituted in this court and was submitted upon the petition, answer and reply. The file contains also certified copies of docket and journal entries in the Courts of Common Pleas hereinafter named; certified copies of original pleadings and papers filed therein; and transcripts. of depositions and testimony which have been stipulated by counsel as depositions.
On August 23, 1943, Helen M. Miller filed in the Court of Common Pleas of Allen county a petition against her husband, Gerald W. Miller, for divorce, alimony and custody of children. Summons, a certified copy of the petition, a certified copy of a restraining order issued by that court and a copy of notice for hearing upon temporary alimony were served upon the husband by the sheriff of Defiance county on August 24, 1943. On August 23, 1943, the court issued an order restraining the husband from annoying, molesting or interfering with the wife, her property and her custody and control of the minor children. On September 7, 1943, at the hearing on the wife's motion for temporary alimony and attorney fees, counsel for the husband filed a motion to quash and set aside service of summons upon him. The court gave the sheriff opportunity to file an amended return and, on the following day, the amended return was filed and the motion of the husband to quash service was overruled.
On August 31, 1943, Gerald W. Miller filed in the Court of Common Pleas of Cuyahoga county an action against his wife for divorce and custody of the children, and on September 3, 1943, the husband filed a motion for temporary custody of the children. Summons and certified copies of the petition, motion and affidavit were served upon the wife by the sheriff of Allen county on September 7, 1943.
On September 9, 1943, the husband by his counsel filed a motion and affidavit in the Court of Common Pleas of Allen county to remove the cause pursuant to Section 12000, General Code, and that court entered an order, approved by counsel for the husband and wife, removing the cause to Auglaize county.
The husband's motion for temporary custody of children was set for hearing and heard in Cuyahoga county on September 10, 1943, at which time the wife filed a motion attacking and denying the jurisdiction of the Court of Common Pleas of Cuyahoga county. Attached to the motion of the wife were certified copies of the docket entries and files of the clerk of courts of Allen county. The acting judge of the domestic relations branch of the Court of Common Pleas of Cuyahoga county overruled the wife's motion, proceeded to hear testimony supporting the husband's motion and awarded temporary custody of the children to the husband on September 10.
On September 14, 1943, the husband appeared personally and by counsel in Auglaize county and defended against a motion for temporary alimony which motion was sustained.
On September 17, 1943, the husband filed a citation in contempt in the Cuyahoga county case and the wife was ordered to appear on September 24, 1943, to show cause.
The preceding day the wife filed a petition in prohibition in this court to stay the hearing upon the citation in contempt or upon any other issues.
The husband filed a motion in the Court of Common Pleas of Auglaize county attacking the jurisdiction of that court upon the ground that the wife had not been a bona fide resident of Allen county for 30 days immediately preceding the filing of her divorce action. On November 3, 1943, that court overruled the motion of the husband, and on November 19, 1943, the husband filed his answer and cross-petition in the Court of Common Pleas of Auglaize county.
Mr. Eugene T. Lippincott and Messrs. Phillips Falsgraf, for relator.
Mr. Gerard Pilliod and Mr. W.R. Price, for respondents.
"It is a fundamental rule that, as between courts of concurrent and coextensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals. This rule obtains in divorce actions. * * *" 14 Ohio Jurisprudence, 410, Section 30. See, also, 11 Ohio Jurisprudence, 726, Section 81, citing Ex parte Bushnell, 8 Ohio St. 599, and other authorities.
The writ of prohibition will be issued as prayed for in the petition.
Writ allowed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.