Opinion
No. 82-103
Decided July 7, 1982.
Prohibition — To prevent court from exercise of jurisdiction — Writ denied, when — Appeal remedy available.
IN PROHIBITION.
Relator, Rose Hill Burial Park of Hamilton, Ohio, is an association incorporated for cemetery purposes and is the owner of certain real property located in Butler County. This property is used in the conduct of relator's business.
Respondent, John R. Moser, is a judge of the Court of Common Pleas of Butler County.
By letter dated November 26, 1975, relator was notified, pursuant to R.C. 1721.01, that the Ohio Department of Transportation ("ODOT") intended to appropriate a portion of its property for state highway purposes. Apparently, relator objected to this proposed taking and negotiations failed to resolve the differences between relator and ODOT. On October 31, 1979, ODOT commenced an appropriation action in the Court of Common Pleas of Butler County. The appropriation action was assigned to respondent.
In pertinent part, R.C. 1721.01 provides as follows:
"Lands of cemetery associations not containing graves or not containing graves that are in use as such on the date a written notice *** is served upon the officers of a cemetery, shall be subject to appropriation for highway *** purposes ***.
"The appropriating agency shall serve upon the officers or agents having control of a cemetery a written notice that a specifically designated area of the cemetery may be needed for highway purposes. No such notice may be served more than once."
On September 14, 1981, relator moved to dismiss the appropriation complaint on the grounds that a portion of the property sought to be appropriated contained a grave, albeit unmarked, and respondent was, by virtue of this fact, deprived of jurisdiction in the cause. By entry dated November 24, 1981, respondent denied the motion to dismiss and granted ODOT leave "to file an Amended Complaint containing a new, revised description of the property being appropriated, which deletes so much of the area originally intended to be appropriated as will allow the highway to avoid *** [the] gravesite."
On January 19, 1982, relator commenced the instant action in this court seeking an order "prohibiting respondent from any further *** exercise of judicial power in these premises, and specifically prohibiting him from entertaining any further proceedings in the [appropriation] action ***."
Messrs. Porter, Wright, Morris Arthur, Mr. Thomas M. Herbert and Mr. Roger F. Day, for relator. Mr. William J. Brown, attorney general, Messrs. Knepper, White, Arter Hadden and Mr. Richard A. Frye, for respondent.
The issue presented herein is whether a writ of prohibition should issue to prevent respondent from proceeding further in the appropriation action presently pending in his court.
Generally, relator contends that prohibition will lie because there is a total want of jurisdiction on the part of respondent in the cause. Specifically, relator's argument is two-pronged. First, relator argues that R.C. 1721.01 authorizes appropriation only where there are no graves in the area sought to be appropriated. Thus, according to relator, once the existence of such a grave is established, there is no statutory basis for appropriation and respondent's jurisdiction in the matter is "at an end." Second, relator maintains that it was error for respondent "to journalize an entry allowing *** [ODOT] to change the location of its proposed highway ***."
Even were we to assume, arguendo, the validity of relator's first argument, the critical question remains — what effect is to be given respondent's order of November 24, 1981, authorizing amendment of the appropriation complaint? If the order is valid, then there will be no graves located within the property sought to be appropriated. Therefore, according to relator's logic, if there are no graves situated within such property, respondent may properly exercise jurisdiction over the cause.
At this juncture, the question presented is not one of jurisdiction; rather, the question is whether respondent committed error in permitting amendment of the complaint. This is an issue more properly raised on appeal.
This court has consistently held that in order for prohibition to lie, three requirements must be satisfied: "*** (1) the court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy in the ordinary course of the law. ***" State, ex rel. McKee, v. Cooper (1974), 40 Ohio St.2d 65 [69 O.O. 2d 396], paragraph one of the syllabus; State, ex rel. Susi, v. Flowers (1975), 43 Ohio St.2d 11 [72 O.O. 2d 6]; State, ex rel. Bell, v. Blair (1975), 43 Ohio St.2d 95 [72 O.O. 2d 53]. Accord State, ex. rel. Rhodes, v. Solether (1955), 162 Ohio St. 559 [55 O.O. 440].
Moreover, it is patently clear that "prohibition cannot be used as a substitute for appeal." State, ex rel. Crebs, v. Court of Common Pleas (1974), 38 Ohio St.2d 51, 52 [67 O.O. 2d 61].
Under the facts of this case, relator has an adequate remedy in the ordinary course of law by way of appeal. Accordingly, the writ of prohibition is denied.
Writ denied.
CELEBREZZE, C.J., W. BROWN, SWEENEY, LOCHER, HOLMES, C. BROWN and KRUPANSKY, JJ., concur.