Opinion
No. 31108
Decided December 23, 1947.
Prohibition — Writ awarded only to prevent unlawful usurpation of jurisdiction — Writ not issued to review regularity of act already performed — Acts of justice of peace, subsequent to rendering judgment, ministerial — Acts of constable, ministerial — Writ issued only in absence of other plain and adequate remedy.
1. A writ of prohibition may be awarded only to prevent the unlawful usurpation of jurisdiction and does not lie to prevent the enforcement of a claimed erroneous judgment previously entered or the administrative acts following the rendition of a judgment by a justice of the peace; it may be invoked only to prevent proceeding in a matter in which there is an absence of jurisdiction and not to review the regularity of an act already performed. (State, ex rel. Garrison, v. Brough, 94 Ohio St. 115; State, ex rel. Voight, Jr., v. Lueders, Probate Judge, 101 Ohio St. 211; Marsh v. Goldthorpe, Mayor, 123 Ohio St. 103; State, ex rel. Maysville Bridge Co., v. Quinlan, Probate Judge, 124 Ohio St. 658; State, ex rel. Frasch, v. Miller, Judge, 126 Ohio St. 287, approved and followed.)
2. Ordinarily, the acts of a justice of the peace taken in an action subsequent to the rendering of a judgment are ministerial.
3. The acts of a constable are ministerial and not judicial. (Section 3327 et seq., General Code.)
4. The writ of prohibition will be issued only where there is no plain and adequate remedy in the ordinary course of the law.
APPEAL from the Court of Appeals for Lake county.
The respondent John F. Clair is a justice of the peace and respondent Eben Hager is a constable of Willoughby township, Lake county.
The instant action grew out of a forcible entry and detainer action brought by Dewey C. Olson against Carl Moss and Louis Drucker to regain possession of the premises which were the subject of the lease in the case of Moss v. Olson, ante, 625.
On December 17, 1946, the justice of the peace issued a writ of restitution which was held in abeyance until a motion for permission to appeal to the Common Pleas Court was disposed of. The motion for leave to appeal to the Common Pleas Court having been overruled on April 17, 1947, the relators on April 30, 1947, filed their petition in the Court of Appeals for Lake county for a writ of prohibition in which it is stated, inter alia:
"Relators further say that on the 9th day of December, 1946, these relators, as defendants in the forcible detention action, appeared before the respondent, John F. Clair, the said justice of the peace, in response to the summons theretofore served upon them, and objected to the jurisdiction of the said justice of the peace to hear the matter for the reason that there was then and is now another action pending between the same parties involving possession of the same subject matter, namely, the real estate in question, and for the further reason that the action in said justice court involved the construction and interpretation of a written lease. Relators say that on said date, to wit, December 9th, 1946, the cause was submitted to the said justice of the peace upon an agreed statement of facts and the introduction of the written lease covering the property in question, and upon argument of counsel. Thereafter, to wit, on the 17th day of December, 1946, the said justice of the peace rendered his written opinion and findings, a copy of which is attached hereto and made a part hereof and marked 'exhibit A,' and on the same day, to wit, December 17th, 1946, entered judgment against these relators, the defendants therein and in favor of the said Dewey C. Olson.
"Relators say that thereafter they did duly request leave of the Common Pleas Court of Lake county to file their appeal from said finding and judgment of said justice of the peace, but that on April 21st, 1947, said Common Pleas Court denied the request of these relators, as is fully set forth in the opinion of said court, attached hereto and made a part hereof and marked 'exhibit B.'
"Relators say that the judgment entered by the said justice of the peace was so entered more than four (4) days after the date on which the cause was heard and was entered contrary to the provisions of Section 10378 of the General Code of Ohio; that said justice of the peace was without power and authority to enter the judgment at the time set forth and that by reason thereof said judgment is wholly void and is a nullity; that a writ of restitution has or will be issued by the said Justice of the Peace to the respondent constable, under the guise of the purported judgment and said respondents have threatened to fully execute the said writ of restitution and forcefully evict relators from said premises and unless prohibited will do so, all of which will cause irreparable injury to relators."
On May 21, 1947, the Court of Appeals denied the writ of prohibition.
This action in prohibition having originated in the Court of Appeals, the appeal is here as of right.
Mr. Wm.H. Rosenfeld and Mr. Alfred Palay, for appellants.
Mr. Wayne E. Davis, for appellees.
We are met at the threshold of our consideration of this case by appellees' claim that relators have mistaken their remedy and that a writ of prohibition is not an appropriate remedy where a judgment has been rendered by the tribunal against which the writ is sought.
In the case of State, ex rel. Garrison, v. Brough, 94 Ohio St. 115, 113 N.E. 683, it was held:
"The writ of prohibition is an extraordinary legal remedy whose object is to prevent a court or tribunal of peculiar, limited or inferior power from assuming jurisdiction of a matter beyond its cognizance. The writ cannot be made to serve the purpose of a writ of error to correct mistakes of the lower court in deciding questions of law within its jurisdiction."
In 32 Ohio Jurisprudence, 577, Section 16, it is said:
"Except in those cases where some valid constitutional or statutory enactment declares directly to the contrary, it must appear that the act in question is not ministerial in character. If it is ministerial, the writ cannot be sustained, though the person or tribunal against which it is sought is a judge or court authorized in proper cases to discharge judicial functions."
In the case of State, ex rel. Voight, Jr., v. Lueders, Probate Judge, 101 Ohio St. 211, 128 N.E. 70, it was held in paragraphs two and three of the syllabus:
"2. The writ of prohibition does not lie to prevent the ministerial act of a probate judge, acting as clerk ex officio, issuing an execution upon a judgment in his court, since such act does not involve judicial nor quasi-judicial functions.
"3. When an execution issued against a party is not warranted by a judgment of the Probate Court, ample remedy is supplied the aggrieved party by application to the court to set aside the writ, or by proceedings in injunction."
In 32 Ohio Jurisprudence, 571, Section 9, it is said:
"Inasmuch as prohibition is preventive rather than corrective, it may be invoked only to prevent the commission of a future act, and not to undo an act which has already been performed. Hence, a writ of prohibition will not issue upon application made subsequent to the rendition of final judgment by the court whose action is sought to be prohibited."
In the case of Marsh v. Goldthorpe, Mayor, 123 Ohio St. 103, 174 N.E. 246, it was held:
"2. The writ of prohibition will not lie as a writ of error to prevent enforcement of an erroneous judgment rendered within the jurisdiction of the tribunal which rendered it.
"3. Prohibition is a preventive writ, designed to prevent a tribunal from proceeding in a matter which it is not authorized to hear and determine or in which it seeks to usurp or exercise a jurisdiction with which it has not been invested by law. Being preventive rather than corrective it may only be invoked to prevent the commission of a future act and not to undo an act which is already performed."
In the case of State, ex rel. Maysville Bridge Co., v. Quinlan, Probate Judge, 124 Ohio St. 658, 181 N.E. 880, this court rendered the following per curiam opinion:
"The court find that there is no warrant for the issuance of a writ of prohibition sought by the plaintiff, for the reason that the action, order and judgment which the plaintiff seeks to have restrained and prohibited have been fully consummated. A writ of prohibition may be awarded only to prevent the unlawful usurpation of jurisdiction, and does not lie to prevent the enforcement of a claimed erroneous judgment previously rendered; it may be invoked only to prevent proceeding in a matter in which there is an absence of jurisdiction and not to review the regularity of an act already performed. It cannot be substituted for a proceeding in error."
In the case of State, ex rel. Frasch, v. Miller, Judge, 126 Ohio St. 287, 185 N.E. 193, it was held:
"1. A writ of prohibition is not available as a substitute for error proceedings.
"2. A writ of prohibition will not issue upon application made subsequent to the rendition of final judgment by the court whose action is sought to be prohibited."
In the instant case the judgment had been pronounced by the justice of the peace and all that remained thereafter to be done was ministerial. The duties of the constable in the instant case were purely ministerial. A constable has no judicial function. Section 3334, General Code.
In 24 Ohio Jurisprudence, 320, Section 82, it is said:
"Generally speaking, those acts which are of a clerical nature, and which are performed by the clerks in courts of record, are ministerial. Accordingly, it has been held that the docketing of the cause, and recording therein everything that the law requires or directs to be entered, the issuing of execution thereon, the issuing of an order of arrest, the entering of the judgment on the docket in proper form, and the fixing of the proper date to a recognizance are ministerial."
The prayer of relators' petition for a writ of prohibition is as follows:
"Wherefore, relators pray that an order for a writ of prohibition may issue against said respondents, John F. Clair and Eben Hager, to prevent them or either of them from issuing, serving, executing or otherwise complying with any writ of restitution or other process, arising from or under or in furtherance of the purported judgment entered by the said justice of the peace, as aforesaid, and further pray that the said respondents be restrained in like manner until the final hearing of this cause and pray further for such other and further orders in the premises as the nature of the case may require."
The acts for which the writ is sought in the instant case are ministerial and, therefore, do not fall within the purview of an action in prohibition. See State, ex rel. Frasch, v. Miller, Judge, supra.
The writ of prohibition will issue only where there is an absence or inadequacy of remedy. 32 Ohio Jurisprudence, 566, Section 5, and 569, Section 7. As pointed out by appellees in their brief, "The relators have an adequate remedy by way of injunction to test the validity of the judgment of the justice court." See, also, State, ex rel. Voight, Jr., v. Lueders, Probate Judge, supra.
In view of our conclusion as to the appropriateness of the remedy sought, we do not reach the consideration of appellants' assignments of error. Therefore, upon the authorities quoted above the judgment of the Court of Appeals in the instant case should be and hereby is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.