Opinion
No. 26470
Decided May 19, 1937.
Probate Courts — Empowered to determine own jurisdiction — Declaratory judgments — Writ of prohibition — Not issued to prevent erroneous judgment — Writ not substitute for appeal.
IN PROHIBITION.
An administrator de bonis non, appointed by the Probate Court of Franklin county, filed in that court a petition for declaratory judgment in which he sought the direction of the Probate Court with respect to the disposition and distribution of the distributive share of one of the heir's of an estate. The relatrix in the present proceeding, who was made defendant in the declaratory judgment action, filed a demurrer to the petition on the grounds that the Probate Court had no jurisdiction of the subject-matter or power to grant the relief prayed for, which demurrer was overruled by the Probate Court, an entry was journalized and exceptions were noted.
Thereafter the relatrix filed in this court a petition in prohibition, pleading that she had no adequate remedy at law, and praying that the respondent probate judge be commanded to refuse to try the declaratory judgment proceeding or enter the direction or judgment prayed for in the last named action. A demurrer to the petition in prohibition raises the issue before this court.
Mr. John R. Horst and Mr. L.C. Barker, for relatrix.
Mr. Ralph J. Bartlett, prosecuting attorney, and Mr. Robert P. Barnhart, for respondent.
The Probate Court, by Section 8, Article IV of the Ohio Constitution, is vested with jurisdiction in probate and testamentary matters and "such other jurisdiction, in any county, or counties, as may be provided by law." That court is competent to determine its own jurisdiction and a writ of prohibition will not issue to prevent an anticipated erroneous judgment. State, ex rel. Barbee, v. Allen, Judge, 96 Ohio St. 10, 117 N.E. 13; State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430. The writ of prohibition is not available as a substitute for a proceeding on appeal. Silliman v. Court of Common Pleas of Williams County, 126 Ohio St. 338, 185 N.E. 420; State, ex rel. Young, v. Morrow, Judge, 131 Ohio St. 266, 2 N.E.2d 595.
Writ denied.
WEYGANDT, C.J., JONES, MATTHIAS, DAY, ZIMMERMAN, WILLIAMS and MYERS, JJ., concur.