Opinion
No. 30176
Decided February 7, 1945.
Mandamus — Writ not issued to control judicial discretion or where appeal available — Sections 12285 and 12287, General Code — Writ sought to compel judges to strike entry from files.
APPEAL from the Court of Appeals of Cuyahoga county.
The Superintendent of Banks filed in the Court of Appeals a petition for a writ of mandamus, naming as respondents the Court of Common Pleas of Cuyahoga county and the judges thereof.
The following statement of facts presents an abstract of the allegations of the petition upon which relator relied for a writ of mandamus in the Court of Appeals.
The petition in mandamus alleges that a former Superintendent of Banks in charge of the liquidation of The Guardian Trust Company, for and on behalf of the company and its depositors, creditors and shareholders, instituted an action against sixty-two persons who had been directors of the trust company. The petition in mandamus alleges in detail the numerous motions filed to the original and amended petitions in the former action, to and including the fourth amended petition, to which motions were filed to strike from the files, to separately state and consecutively number each of the causes of action, and to make definite and certain. It is alleged that a common pleas judge announced from the bench that the motions to separately state and number were sustained, the motion to strike was granted, the fourth amended petition was stricken from the files, the action was dismissed and judgment was ordered for defendants for costs; and it is also alleged that the order as journalized, however, only struck the fourth amended petition from the files, dismissed the action and overruled all other motions, thereby disregarding that portion of an entry drafted by counsel for plaintiff, which set forth that the motions to separately state and number were granted. It is alleged further in the petition for mandamus that the plaintiff appealed to the Court of Appeals, which reversed the Court of Common Pleas for error in sustaining the motions to strike the fourth amended petition from the files, in striking that amended petition from the files and in dismissing the action; and that a motion to certify the record was overruled by this court. The petition in mandamus alleges also that certain defendants in such former action, then filed a motion asking the Court of Common Pleas to enter a decree nunc pro tunc granting their motion to separately state and number; that the plaintiff moved to strike from the files the motion for a decree nunc pro tunc; and that the application for a nunc pro tunc order was granted.
The petition for mandamus filed in the Court of Appeals prays that the Court of Common Pleas and the judges thereof be ordered to strike the nunc pro tunc entry from the files and that the court and judges thereof be ordered to carry out the order and judgment of the Court of Appeals.
Appeal was perfected to this court as of right from the judgment of the Court of Appeals which sustained the demurrer to the petition, refused a writ of mandamus and dismissed the petition.
Mr. Thomas J. Herbert, attorney general, Messrs. Davis Young and Messrs. Krueger, Gorman Davis, for appellant.
Messrs. Squire, Sanders Dempsey, Mr. H.J. Crawford, Mr. Frank Harrison and Messrs. Thompson, Hine Flory, for appellees.
The relator seeks by writ of mandamus an order to strike the nunc pro tunc entry from the files. That writ "cannot control judicial discretion" (Section 12285, General Code) and the writ "must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law" (Section 12287, General Code). The Court of Common Pleas exercised its judicial discretion in entering the nunc pro tunc order and the relator has a plain and adequate remedy by appeal. State, ex rel. McCamey, v. Court of Common Pleas, 137 Ohio St. 566, 31 N.E.2d 683.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.