Summary
In Gelman, we denied a writ of prohibition where relator's complaint alleged that service was defective and that the trial court erred in overruling a motion to quash service, and the trial court claimed in its answer that service had been properly perfected.
Summary of this case from State ex rel. Suburban Construction Co. v. SkokOpinion
No. 36682
Decided March 22, 1961.
Prohibition — Writ not issued to reconsider issue determined by trial court — Or to correct error or prevent erroneous judgment — Jurisdiction — Divorce and alimony.
APPEAL from the Court of Appeals for Lorain County.
The relatrix, appellant herein, instituted this action in prohibition in the Court of Appeals for Lorain County. She alleges in her petition that, on June 20, 1959, her husband filed his petition for divorce in the respondent court, naming relatrix as defendant; that the respondent court has no jurisdiction to hear and determine the action because of defective service of summons; that on September 5, 1959, relatrix filed her petition for divorce, alimony, custody of child, support and equitable relief in the Court of Common Pleas of Cuyahoga County (herein called the Cuyahoga court); that personal service was made on defendant; and that the Cuyahoga court has full and exclusive jurisdiction of the parties and subject matter.
The prayer of her petition is for a writ prohibiting the respondent court from proceeding with the hearing of the petition or the granting of any order or judgment therein.
The respondent court in its answer alleges, inter alia, that service by publication in the action for divorce by relatrix's husband in such court was made and completed on August 17, 1959; that relatrix endeavored to quash such service of process by motion to quash; that her motion was overruled and she was granted leave to answer; that she perfected her appeal to the Court of Appeals, which appeal was dismissed; and that she thereafter filed her answer in the respondent court.
The respondent court alleges further that it has jurisdiction of the subject matter of the pending divorce action and has determined by appropriate finding and order that such jurisdiction has been properly invoked; that the writ of prohibition sought by relatrix in this proceeding is not an appropriate remedy to question the finding and order of the respondent court that it has jurisdiction of the subject matter of the pending divorce action; and that such jurisdiction has been properly invoked. The prayer of the answer is that the petition be dismissed.
The Court of Appeals denied the writ.
An appeal as of right brings the cause to this court for review.
Mr. George Pillersdorf, Mr. Harry J. Dworkin and Mr. Meyer Gordon, for appellant.
Mr. Dan K. Cook, for appellee.
That the respondent court has jurisdiction of the subject matter, to wit, a divorce action, is without question.
The issue presented here by relatrix is the jurisdiction of the respondent court in the divorce action over the person of relatrix. This question was originally presented by relatrix and adjudicated by the respondent court in its order overruling the motion by relatrix to quash the service of summons in the divorce action. An appeal from that order was dismissed by the Court of Appeals on the ground that the order was not a final appealable order, and no further appeal was taken.
An action in prohibition may not be employed to correct an alleged error of a trial court in its ruling on jurisdiction over a party defendant, where jurisdiction of the subject matter is readily apparent ( State, ex rel. Hanna, v. Court of Common Pleas of Cuyahoga County, 144 Ohio St. 272), or to prevent an erroneous judgment ( State, ex rel. Sparto, v. Juvenile Court of Darke County, 153 Ohio St. 64).
The Court of Appeals was not in error in denying the writ, and its judgment is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.