Opinion
No. 31729
Decided March 22, 1950.
Prohibition — Writ not substitute for appeal — Municipal Court not prohibited from enforcing Court of Appeals judgment — Appeal formerly perfected to Supreme Court.
IN PROHIBITION.
This court is asked to issue a writ prohibiting the Municipal Court of Cleveland and the judges thereof from carrying into execution a judgment of the Court of Appeals of the Eighth Appellate District, rendered by the judges of the Court of Appeals of the Ninth Appellate District, sitting by designation. The cause was submitted to this court on the petition, answer and a motion for judgment on the pleadings. There was filed also a deposition containing a record of the proceedings in the action which resulted in the aforementioned judgment of the Court of Appeals.
The petition in prohibition alleges the following facts which are admitted by the answer:
The present relators were defendants in an action instituted by one Davidson in the Municipal Court. Trial was had to the court without a jury, and judgment was rendered for plaintiff. A motion by defendants to vacate the judgment was granted and a new trial ordered.
Plaintiff instituted an appeal to the Court of Appeals of the Eighth Appellate District, which remanded the cause to the Municipal Court with directions to hear and determine the motion to vacate the judgment. The Municipal Court held a hearing and again granted the motion.
Thereafter, plaintiff filed a second appeal to the Court of Appeals, the cause was heard by judges of the Court of Appeals of the Ninth Appellate District sitting by assignment, the judgment of the Municipal Court was reversed, final judgment was entered for plaintiff, and a mandate was issued by the Court of Appeals to the Municipal Court to carry the judgment into execution.
The answer in the present prohibition proceeding alleges that this court overruled a motion to certify the record, dismissed an appeal as of right on the ground no debatable constitutional question was involved ( Davidson v. Hough, 150 Ohio St. 438, 83 289 N.E.2d 69), and issued a mandate to enforce the judgment of the Court of Appeals. The answer alleges further that the relators in the present prohibition proceeding filed in the Court of Appeals of the Eighth Appellate District a petition to prohibit the enforcement of the aforestated judgment, a motion to strike that petition from the files was sustained, the action was dismissed by the Court of Appeals, notice of appeal as of right was filed in this court and thereafter the instant proceeding in prohibition was instituted.
No reply was filed.
The records of this court disclose that, prior to the institution of the present proceeding in prohibition in this court, the notice of appeal from the adverse judgment in the prohibition proceeding brought in the Court of Appeals was stricken from the files and that appeal was dismissed on representation by the appellants that they did not intend to further prosecute that appeal in this court.
Messrs. Woodle Wachtel, for relators.
Mr. Lee C. Howley, director of law, and Mr. Robert J. Selzer, for respondents.
From the facts alleged in the pleadings it is apparent that the instant proceeding is an attempt to convert a proceeding in prohibition into a second proceeding on appeal. A writ of prohibition not being available as a substitute for an appeal (32 Ohio Jurisprudence, 586, Section 24, citing, inter alia, State, ex rel. Burtzlaff, v. Vickery et al., Judges, 121 Ohio St. 49, 166 N.E. 894, and State, ex rel. Brickell, v. Roach, Recr., 122 Ohio St. 117, 170 N.E. 866), it follows that the motion for judgment on the pleadings in the present case should be, and is, sustained and a writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.