Opinion
No. 70-690
Decided March 3, 1971.
Mandamus — Not available, when — No duty clearly enjoined by law on respondent — Action to compel assistant prosecutor to return property — Property not in respondent's possession.
APPEAL from the Court of Appeals for Hamilton County.
This is an action in mandamus which was filed in the Court of Appeals for Hamilton County. Relator seeks to compel the respondent, an assistant prosecuting attorney of Hamilton County, to return a wallet and money, which relator alleges belongs to him and was introduced in evidence against him at an earlier trial. Respondent's answer alleges that the money which appellant seeks to have returned was attached to pay court costs in the earlier proceedings; that the personal property relator seeks to recover is held as evidence pending the outcome of relator's appeal; and that the money and property relator seeks to recover are not in his possession or control.
The Court of Appeals denied the writ. The cause is before this court upon an appeal as of right in a case originating in the Court of Appeals.
Mr. Jerome B. Freeman, in propria persona. Mr. Melvin G. Rueger, prosecuting attorney, and Mr. Leonard Kirschner, for appellee.
Mandamus lies only to compel the performance of an act which is clearly enjoined by law upon a respondent. Here, the respondent did not have possession of the property which relator sought to have returned to him by this action in mandamus.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, DUNCAN, CORRIGAN, STERN and LEACH, JJ., concur.