Opinion
No. 75-1153
Decided March 10, 1976.
Prohibition — To restrain court from proceeding in divorce action — Remedy does not lie, when — Adequate remedy of appeal.
APPEAL from the Court of Appeals for Hamilton County.
On July 16, 1975, relator, Elaine A. Heimann, filed an action in prohibition in the Court of Appeals, seeking to restrain respondent, Paul J. George, Judge of the Court of Common Pleas of Hamilton County, Division of Domestic Relations, from proceeding in a divorce action pending before him, "known as Edward A. Heimann v. Elaine A. Heimann, case No. A755163," which was filed on June 25, 1975. Relator alleges that her husband has set forth as grounds for divorce, R.C. 3105.01(K), effective May 7, 1974, and commonly known as "the two-year separation statute." The Court of Common Pleas had, on December 3, 1974, previously entered a "decree for alimony, support and custody of children" in an earlier divorce action filed by Mr. Heimann in July of 1973.
The Court of Appeals granted respondent's motion to dismiss, for the reasons that the court lacked jurisdiction over the subject matter of the complaint and that the complaint failed to state a claim upon which relief could be granted.
The cause is now before this court pursuant to an appeal as a matter of right.
Messrs. Boyd, Wyler McKew, Mr. William S. Wyler and Mr. David J. Boyd, for appellant.
Mr. Simon L. Leis, Jr., prosecuting attorney, Mr. Robert W. Worth and Mr. James W. Harper, for appellee.
Relator states that the "complaint for writ of prohibition was filed in the Court of Appeals, because the Judge of the lower court made it clear that he intended to proceed with the divorce * * * [in] this matter * * *, even though there is still an appeal pending in the first case," and contends that there is "no adequate remedy at law to give redress to [ sic] the injury which appellant would receive, if the divorce decree were granted."
However, this court has stated that "[t]he rule is firmly established that the Court of Common Pleas is a court of general jurisdiction and, as such, possesses the authority initially to determine its own jurisdiction over both the person and the subject matter in an action before it, subject to the right of appeal; and generally prohibition, an extraordinary remedy entertained with caution, will not lie to prevent an anticipated erroneous judgment. * * * [Citations omitted.]" State, ex rel. Mansfield Telephone Co., v. Mayer (1966), 5 Ohio St.2d 222, 223. Further, "prohibition is not a substitute for appeal." State, ex rel. Gilla, v. Fellerhoff (1975), 44 Ohio St.2d 86, 88; State, ex rel. Toerner, v. Common Pleas Court (1971), 28 Ohio St.2d 213.
Relator's contention as to the applicability of State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St.2d 326, has no merit. The instant case clearly does not involve such a "`total want of jurisdiction' ( Gusweiler) * * * to warrant dispensing with relator's adequate remedy of appeal." State, ex rel. Gilla, v. Fellerhoff, supra, at page 88.
Relator challenges further the constitutionality of R.C. 3105.01(K), and thereby seeks to determine that issue in this prohibition action. However, "the unconstitutionality of a statute does not deprive a court of the initial jurisdiction to proceed to its terms. Appellant has other remedies in the ordinary course of the law and by way of appeal. * * *" State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.