Opinion
No. 27652
Decided December 13, 1939.
Mandamus — Judge of Common Pleas Court to approve entry — Dismissing divorce action and dissolving orders theretofore issued — Notwithstanding noncompliance with prior order requiring payment of attorneys' fees.
Mandamus will lie to compel a judge of a Common Pleas Court, before whom a divorce action is pending, to approve an entry, submitted by both parties to that action, dismissing the action and dissolving all orders theretofore issued therein, although the husband has failed to comply with a prior order of the court requiring him, as defendant, to pay plaintiff a sum of money as fees for her attorneys in the action.
APPEAL from the Court of Appeals of Franklin county.
This cause originated in the Court of Appeals of Franklin county through a petition in mandamus filed on March 10, 1939, by the relators to compel Clayton W. Rose, as judge of the Common Pleas Court of Franklin county, Division of Domestic Relations, respondent, to approve an entry dismissing the case of Lena Cash, plaintiff, v. Lawrence Cash et al., defendants, No. 18463, a divorce action pending in the Common Pleas Court of Franklin county, and dissolving all orders theretofore issued in that case. Such dismissal was requested by the plaintiff, Lena Cash, and the defendant, Lawrence Cash, a reconciliation having been effected between them.
The respondent, on April 7, 1939, filed an answer setting out his reasons for refusing to approve such entry to the effect that Lena Cash, plaintiff in the divorce action, through her attorneys, filed her petition on July 11, 1938; that at the same time her petition was filed she, through her attorneys, filed a motion, supported by her affidavit, to require her husband, Lawrence Cash, defendant, to pay her a reasonable amount for the support of herself and children during the pendency of the action and to pay her a further amount for the services of her attorneys in the prosecution of the action; that on August 16, 1938, the respondent granted the motion and ordered defendant Cash to pay plaintiff forthwith, for her attorneys, the sum of fifty dollars, with which order defendant Cash failed to comply; that on the filing of the divorce petition, a restraining order was issued against various defendants restraining them from paying any money or credits in their hands to defendant Cash, one such defendant having answered that it had in its possession, due and owing to such defendant, a sum of money in excess of the amount of such attorneys' fees; that the money is still subject to such restraining order; and that a motion is pending, in the court of which respondent is judge, to require the money held by such creditor of defendant Cash to be paid into court to liquidate such attorneys' fees, but has not been acted upon.
Respondent further alleges in his answer that because of failure of defendant Cash to comply with the court's order relating to attorneys' fees, the attorneys for plaintiff have refused to approve and now object to an entry dismissing the action and dissolving the restraining order as aforesaid. The respondent also avers that the proposed entry of dismissal, so submitted to him for approval, does not provide for the payment of court costs incurred in the divorce action.
The relators filed a demurrer to respondent's answer on the ground that it did not state a defense to their petition, whereupon respondent filed a motion for judgment on the pleadings which the court overruled, but sustained the relators' demurrer to the answer. The respondent declined to plead further, whereupon a writ of mandamus was issued requiring him to approve and file such entry of dismissal and dissolution of the court orders in the divorce action pending in his court. The respondent has perfected an appeal to this court.
Mr. E.O. Ricketts, for appellees.
Messrs. Baldwin Nolan, for appellant.
The question involved in this case is whether a writ of mandamus may issue against the respondent as judge of the Common Pleas Court of Franklin county, Division of Domestic Relations, to require him to dismiss a divorce action pending in his court, a dismissal having been requested by both plaintiff and defendant Cash in that action, and his refusal to act being based upon the fact that defendant Cash has not complied with an order of the court to pay the fees of plaintiff's attorneys. The answer depends on whether such an order would interfere with judicial discretion upon the part of the respondent, and on the right of the plaintiff in such action to dismiss it.
A writ of mandamus may issue only to an officer or person to command the performance of an act which the law specially enjoins as a duty resulting from an office or trust. It will not issue to control discretion ( Board of Education of Sycamore v. State, ex rel. Wickham, 80 Ohio St. 133, 88 N.E. 412; State, ex rel. Baker, v. Hanefeld, Dir., 134 Ohio St. 540, 18 N.E.2d 404) but it will issue to compel the exercise of such discretion, and in the case of a judicial officer to compel the exercise of functions conferred by law. State, ex rel. Tailford, v. Bistline, Judge, 96 Ohio St. 581, 119 N.E. 138.
Section 12285, General Code, makes this clear in language as follows:
"The writ may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion."
There is no claim that the plaintiff, in the divorce action pending before the respondent, was in default or had disobeyed any order of the court. She was, therefore, in the absence of any intervening party seeking affirmative relief, entitled to prosecute or dismiss her action at her election. If the prosecution of any suit is abandoned, the ultimate action of the court must necessarily be to dismiss it for want of prosecution. Section 11585, General Code.
In the case at bar, no action had been taken upon the merits of the suit for divorce. Section 11586, General Code, provides:
"An action may be dismissed without prejudice to a future action:
"(1) By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court; * * *
"(6) By the plaintiff, in vacation, on payment of costs. * * *"
Before the passage of this statute, it was held that the propriety of permitting a plaintiff, in an equity suit, to dismiss his bill without prejudice, rested in the sound discretion of the court, and that there was no stage of the trial at which he had an absolute right to do so ( Conner v. Drake, 1 Ohio St. 166; see, also, Taylor v. Alexander, 6 Ohio, 144) but since the adoption of the above statute (Section 372, Civil Code, 51 Ohio Laws, 118, adopted March 14, 1853), the plaintiff's right to terminate the suit at any time before the final submission of the case on its merits is absolute and is not dependent upon the discretion of the court. Dayton Western Rd. Co. v. Marshall, 11 Ohio St. 497. In fact, a dismissal by the plaintiff involves no discretion or even any action on the part of the court. Siegfried v. Railroad Co., 50 Ohio St. 294, 297, 34 N.E. 331.
Since the plaintiff in the divorce action had the right to have her action dismissed, and since such right of dismissal was not dependent upon the discretion of the court, the request to dismiss should have been allowed. A judgment for costs may, of course, be rendered.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., DAY, MYERS and MATTHIAS, JJ., concur.