Opinion
No. 77-609
Decided January 18, 1978.
Mandamus — Complaint dismissed, when — Appeal remedy exhausted — Successive appellate reviews sought.
APPEAL from the Court of Appeals for Franklin County.
On December 17, 1969, relator Ralph A. Bargar's employment with the state of Ohio was terminated by respondent Ellis L. Ross, Executive Director of the Ohio Civil Rights Commission. Relator, on December 15, 1976, filed a complaint in mandamus in the Court of Appeals for Franklin County alleging that he was wrongfully deprived of his employment by respondent and, hence, is entitled to reinstatement and damages.
Relator has already invoked the jurisdiction of the State Personnel Board of Review under R.C. 124.03 and R.C. Chapter 119. He has further unsuccessfully appealed that board's decision denying him relief to the Court of Common Pleas, the Court of Appeals and this court. ( Bargar v. Ohio Bureau of Employment Services, case No. 74-468, motion to certify overruled, September 6, 1974.)
Respondent, pursuant to Civ. R. 12(B), moved to dismiss the complaint in mandamus for failure to state a claim upon which relief can be granted. The Court of Appeals sustained this motion.
The cause is now before this court upon an appeal as of right.
Mr. Ralph A. Bargar, pro se. Mr. William J. Brown, attorney general, and Mr. Richard D. Letts, for appellee.
R.C. 2731.05 provides that "[t]he writ of mandamus must not be issued when there is a plain and adequate remedy in the ordinary course of the law." In this cause, appellant has exhausted his "plain and adequate remedy in the ordinary course of the law" and attempts to substitute an action in mandamus for an otherwise barred second appeal.
This court stated in State, ex rel. Shively, v. Nicholas (1949), 151 Ohio St. 179, at page 181 that: "One remedy at law is the right of appeal. * * * [T]he relatrix did avail herself of this remedy * * *. The fact that the relatrix was unsuccessful in that appeal does not entitle her to substitute a writ of mandamus as an indirect means of perfecting a second appeal."
Mandamus is not a method to obtain successive appellate reviews of the same issue.
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.