Opinion
No. 34596
Decided December 21, 1955.
Mandamus — Act must be specially enjoined by law — Writ not to issue where adequate remedy at law — Writ not substitute for appeal.
IN MANDAMUS.
This action in mandamus originated in this court. Relator alleges in his petition that a jury rendered a verdict in his favor, as plaintiff, in the Court of Common Pleas in an action to recover for personal injuries resulting from the alleged negligence of defendant, The Allied Chemical Dye Corporation, one of the respondents in the instant action; that judgment was rendered in favor of relator, based on such verdict; that the Court of Appeals, by a concurrence of only two judges, reversed the judgment of the trial court and entered judgment for defendant, The Allied Chemical Dye Corporation; that thereafter relator caused to be filed in the office of respondent Hayes, clerk of courts, a praecipe, directed to the sheriff, demanding that execution be issued on the property of The Allied Chemical Dye Corporation to satisfy the judgment for relator, but the clerk refused to issue execution because the judgment in favor of relator was reversed by the Court of Appeals; that the judgment entered by the Court of Common Pleas is and has at all times been a good, valid and subsisting judgment; and that the action of the Court of Appeals purporting to reverse such judgment is null and void for the reason that it was not based on the concurrence of all three judges which is required by the Constitution where the reversal is on the weight of the evidence.
Relator alleges further that, although the Court of Appeals judgment purports to reverse judgment for relator on error of law claimed to have been committed by the trial court, the reversal was based on the weight of the evidence because the trial court's findings of law were based on its own findings of fact which were inconsistent with the general verdict of the jury; that, the judgment of reversal being void, it was not necessary for relator to appeal from the action of the Court of Appeals; and that relator has no plain, adequate and complete remedy at law.
The prayer is for a writ, directed to respondent Hayes, commanding him to issue execution on relator's judgment rendered in the Court of Common Pleas. No relief is asked against the other respondent.
Both respondents demurred to the petition on the grounds of misjoinder of parties respondent, and that the petition does not state facts which show a cause of action. The case has been submitted on the petition and the demurrers.
Mr. J. Earl Pratt, for relator.
Mr. Harold D. Spears, for respondent Homer Hayes, clerk of courts.
Mr. J.W. Byrne, for respondent The Allied Chemical Dye Corporation.
Relator contends that the judgment of the Court of Appeals is absolutely void and of no effect, that a void judgment can be collaterally attacked, and that this mandamus proceeding is a proper procedure in making the collateral attack.
Mandamus is a writ, issued in the name of the state to an inferior tribunal, a corporation, board, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station. Section 2731.01, Revised Code.
Relator in the instant case had an adequate remedy in the ordinary course of law by way of appeal to this court from the judgment of the Court of Appeals reversing the judgment of the Court of Common Pleas. A writ of mandamus may not be invoked as a substitute for the remedy of appeal. State, ex rel. City of Cincinnati, v. Moulton et al., Public Utilities Commission, 160 Ohio St. 397, 116 N.E.2d 445; State, ex rel. Stein, v. Sohngen, Dir., 147 Ohio St. 359, 71 N.E.2d 483; State, ex rel. Blackburn, v. Court of Appeals, 154 Ohio St. 237, 95 N.E.2d 273.
Furthermore, in the absence of a judgment upon which relator is entitled to an execution, there is no basis for the issuance of a writ and consequently no duty devolving upon respondent Hayes to issue execution on relator's judgment rendered in the trial court, which judgment was reversed by the Court of Appeals. Under the facts alleged, there is not enjoined upon respondent The Allied Chemical Dye Corporation any duty to relator resulting from an office, trust, or station.
The demurrers to the petition are sustained and a writ of mandamus is denied.
Demurrers sustained and writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.