Opinion
No. 28274
Decided October 23, 1940.
Prohibition — Writ not available to prevent anticipated erroneous judgment — Writ not substitute for appeal — Jurisdiction of Columbus Municipal Court — Amenability of state to garnishment process.
IN PROHIBITION.
Mrs. Deo M. Palumbo, d. b. a. The Grandview Market, brought an action in the Municipal Court of Columbus and recovered a judgment against Frederick Cuff. She filed a proceeding in aid of execution against Cuff and caused notice to be served upon the Industrial Commission of Ohio, the Treasurer of State and the Auditor of State. They filed no answer, but pursuant to subpoena duces tecum appeared and admitted that Cuff was an employee of the Industrial Commission receiving a monthly salary, that a half-month's salary was due him and that an order had been issued by the Municipal Court to pay into court a portion thereof to be applied upon the judgment, which payment they failed or refused to make.
Thereafter Mrs. Palumbo commenced an action against the Industrial Commission and the two state officers in their official capacities for the amount of the judgment recovered by her against Cuff. The Attorney General filed a motion to quash service of summons "for the reason that said action was in reality, substance and effect against the state" and the Municipal Court did not have jurisdiction to entertain the same. The Municipal Court overruled that motion.
The foregoing facts inter alia are pleaded in the petition in prohibition filed in this court, for a writ commanding the Municipal Court and the judges thereof to refrain from entertaining jurisdiction and proceeding further in the hearing of the cause pending in that court.
This prohibition proceeding is presented for decision on demurrer to the petition.
Mr. Thomas J. Herbert, attorney general, Mr. David M. Spriggs and Mr. Fred W. Edmonston, for relators.
Mr. Maurice K. Topson, for respondents.
The Attorney General concedes that the writ of prohibition ordinarily will not issue in this state where there is an adequate remedy at law available by appeal or otherwise, but he urges that in the present matter the state is possessed of no other remedy which is adequate because of numerous pending cases involving the same question.
The reasoning supporting the second paragraph of the syllabus in State, ex rel. Caley, v. Tax Commission, 129 Ohio St. 83, 193 N.E. 751, applies to the present litigation.
The Municipal Court of Columbus is authorized by Section 1558-51, General Code, to entertain actions to enforce the collection of its judgments, and that court is competent in the first instance to determine its own jurisdiction. A writ of prohibition will not issue to prevent an anticipated erroneous judgment, and the writ is not available as a substitute for a proceeding on appeal. State, ex rel. Norris, v. Hodapp, Judge, 135 Ohio St. 26, 18 N.E.2d 984, and cases cited therein.
The relators not desiring to plead further a writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS, HART and TURNER, JJ., concur.