Opinion
No. 41419
Decided April 24, 1968.
Prohibition — Purpose and scope of writ — Striking from record motion for new trial final order, when — Jurisdiction on appeal — Writ denied.
IN PROHIBITION.
This is an action in prohibition originating in this court. A demurrer has been filed to the petition, and a ruling on the demurrer is dispositive of the action.
This case arose as a result of a judgment in a wrongful death action. The defendant filed a motion for new trial within rule, but failed to file a supporting brief as required by Rule 12 of the Court of Common Pleas until four days after the filing deadline.
The plaintiff filed a motion to expunge the motion for a new trial on the basis that Rule 12 had been violated. The trial court sustained the motion to expunge the motion for a new trial from the record.
The defendant appealed from this order to the Court of Appeals.
The Court of Appeals reversed the judgment of the Court of Common Pleas, finding that such court abused its discretion in striking, and expunging from the record, defendant's motion for a new trial and remanded the cause to the Court of Common Pleas with instructions to rule on the motion for a new trial.
Plaintiff filed this prohibition action in the Supreme Court to restrain the Court of Appeals from remanding the case to the Court of Common Pleas and from entering any order in said cause other than an entry of dismissal.
Messrs. Rowland, Bridgewater Robe, for relator.
Mr. Samuel B. Erskine, for respondent.
Plaintiff by this action seeks to prevent the Court of Appeals from ruling on defendant's appeal from the ruling of the Court of Common Pleas by which his motion for a new trial was expunged. A writ of prohibition is an extraordinary judicial writ, which the Supreme Court is empowered to issue by Section 2 of Article IV of the Constitution, to prevent an inferior court or tribunal from usurping or exercising jurisdiction with which it is not legally invested. Prohibition will be awarded only where the lower court lacks jurisdiction to act in the matter. State, ex rel. Brickell, v. Roach (1930), 122 Ohio St. 117, 170 N.E. 866; State, ex rel. Winnefeld, v. Court of Common Pleas (1953), 159 Ohio St. 225, 112 N.E.2d 27.
Section 6 of Article IV of the Constitution grants the Court of Appeals jurisdiction to "review, affirm, modify, set aside, or reverse judgments or final orders of * * * courts of record inferior to the Court of Appeals within the district * * *."
The order of the trial court, striking and expunging from the record defendant's motion for new trial, necessarily results in a final judgment against defendant, and was, therefore, a final order. Thus, the Court of Appeals had jurisdiction to entertain defendant's appeal. See Klein v. Bendix-Westinghouse Co. (1968), 13 Ohio St.2d 85, 234 N.E.2d 587, for a recent pronouncement on what constitutes a final order. Therefore, the demurrer to the petition is sustained and the writ is denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, TROOP, HERBERT, SCHNEIDER and BROWN, JJ., concur.