Opinion
No. 35043
Decided April 24, 1957.
Bill of exceptions — Correction of errors — Reviewing court may remand for correction — Section 2321.14, Revised Code, construed — Prohibition not available as substitute for appeal.
IN PROHIBITION.
In her amended petition in prohibition, filed originally in this court, relatrix alleges that she was plaintiff in an action in the Court of Common Pleas, in which a verdict was rendered for defendant; that she filed a bill of exceptions to which objections were filed and which was transmitted to the trial judge who signed a certificate acknowledging receipt of the bill and amendments and exceptions thereto and transmitted the bill back to the clerk; that the defendant filed in the Court of Appeals a motion that that court return the bill of exceptions to the trial court so that objections thereto may be considered and ruled on by the trial court; that no affidavits or supporting evidence was attached to the motion or introduced at the hearing; and that the Court of Appeals sustained the motion without finding that there was an omission or that it occurred through accident or error.
Relatrix alleges further that the ruling of the court was neither in conformity with the motion nor with Section 2321.14, Revised Code, which grants jurisdiction to the appellate court to remand a bill of exceptions to the trial court solely for the purpose of correcting omissions occurring through accident or error.
The prayer of the petition is that a writ of prohibition be issued to restrain the respondents, judges of the Court of Appeals, from issuing a mandate or order to the lower court in accordance with its ruling on the motion.
The respondents demurred to the petition for the reason that the petition fails to state facts upon which the requested relief can be granted.
The case has been submitted on the demurrer.
Mr. Frank V. Opaskar, for relator.
Messrs. Hauxhurst, Inglis, Sharp Cull and Mr. M.R. Gallagher, for respondents.
Relatrix contends that the Court of Appeals was without jurisdiction to consider and grant the motion to return the bill of exceptions; and that, under the statute, the court can return the bill only when it finds an omission occurring through accident or error.
The statute (Section 2321.14, Revised Code) provides:
"When justice requires it, upon notice to all parties, an omission in a bill of exceptions, occurring through accident or error, may be corrected by the reviewing court, or it may be remanded to the trial court for such correction."
The statute is remedial in nature and must be liberally construed. The Court of Appeals was acting within the jurisdiction invested in it by that statute in remanding the bill of exceptions to the trial court. Whether error intervened in the exercise of that jurisdiction is not determinable in a proceeding in prohibition, the relatrix having an adequate remedy by way of appeal.
The demurrer to the petition is sustained, and the writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, STEWART, BELL, MATTHIAS and HERBERT, JJ., concur.