Summary
In Houk, the husband commenced a divorce action in the Franklin County Court of Common Pleas before his wife commenced an action for alimony in the Ross County Court of Common Pleas. This court refused to order a writ of prohibition against the Ross County court because that court had not yet decided whether it would exercise jurisdiction in the alimony case.
Summary of this case from State, ex Rel. Largent, v. FisherOpinion
No. 77-365
Decided June 29, 1977.
Prohibition — Alleged lack of jurisdiction — Writ denied, when.
IN PROHIBITION.
Relator has filed an original action in prohibition to restrain respondent, Judge J. Donald Ratcliff of the Court of Common Pleas of Ross County, from exercising jurisdiction in a case pending in that court.
Relator commenced an action for divorce against his wife by filing a Complaint for Divorce in the Court of Common Pleas of Franklin County, on December 22, 1976, with service of process being completed.
On January 6, 1977, relator's wife commenced an action for alimony against relator by filing a complaint in the Court of Common Pleas of Ross County, with service of process being completed. At the commencement of the January 6, 1977, alimony action in the Court of Common Pleas of Ross County, respondent issued an ex parte temporary order for the support and maintenance of relator's wife.
Relator filed a motion to dismiss the Ross County alimony action on the basis of lack of jurisdiction, which motion was denied by respondent after a hearing on March 3, 1977.
On April 19, 1977, respondent made the following journal entry:
"It is the order of this court that the Court of Common Pleas, Ross County, Ohio in the above captioned case is relinquishing special jurisdiction on the question of temporary support and temporary alimony for plaintiff Shirley Houk and minor children Jeffrey R. Houk and Daniel B. Houk. It is the further order of the court that the court is reserving the question of jurisdiction as to domicile and residency of the parties to determine if the court has jurisdiction to proceed further until a full hearing is scheduled in the above captioned case and all parties are notified in accordance with the Ohio Rules of Civil Procedure."
Mr. Harry Lewis, for relator.
Mr. Richard G. Ward, prosecuting attorney, for respondent.
Although the parties have both phrased this case in terms of jurisdiction, it is actually a matter of concurrent and coextensive jurisdiction. Both the Franklin County court and the Ross County court have jurisdiction of the subject matter, and service upon the parties appears to be regular; therefore, comity between co-equal tribunals is the issue — not jurisdiction. But, this issue is not necessarily properly resolved by issuance of a writ of prohibition.
This court is reluctant to grant extraordinary writs. In addition, a court must be allowed to determine its own jurisdiction.
Paragraph two of the syllabus of In re Green (1961), 172 Ohio St. 269, provides that:
"Ordinarily, the Court of Common Pleas, a court of general jurisdiction, is competent to determine its own jurisdiction over the subject matter and parties in an action instituted therein and should be accorded fair opportunity to do so."
This seems to be the issue to which the lower court is addressing itself in its journal entry of April 19, 1977.
This court considered the same issue in State, ex rel. Cleveland Telephone Co., v. Court of Common Pleas (1918), 98 Ohio St. 164, and held that:
"A writ will not be issued, prohibiting the court of common pleas from determining its own jurisdiction, where jurisdiction of the subject-matter of the action has been conferred upon that court by the laws of this state. ( State, ex rel. The Hartford Life Ins. Co., v. Douds et al., 96 Ohio St. 604, and State, ex rel. Faber, v. Jones et al., Judges, 95 Ohio St. 357, approved and followed.)"
The respondent court has, by journal entry, indicated that it does intend to determine its own jurisdiction. Such a determination includes a consideration of comity as between another concurrent and coextensive forum.
The Ross County court having delimited the scope of its inquiry, an extraordinary writ is unnecessary.
The writ of prohibition is denied.
Writ denied.
O'NEILL, C.J., HERBERT, CELEBREZZE, P. BROWN, SWEENEY and LOCHER, JJ., concur.
W. BROWN, J., not participating.