Opinion
No. 28063
Decided December 31, 1940.
Prohibition — Writ not issued where another remedy adequate — Or to decide other issues in advance — Power of county auditor to assess personal property taxes for 1926-1930.
IN PROHIBITION.
In 1929 Harry Coulby died testate, his will was admitted to probate and letters testamentary were issued. In 1937 the final account of his executors was approved and they were discharged.
In 1931 the relator herein qualified as trustee and has continued to administer the remainder of the estate in trust pursuant to the provisions of the will.
In 1940 the county auditor, respondent herein, served notice upon the former executors of the estate to appear before him and be examined pertaining to personal property tax returns for the years 1926 through 1930. The relator made formal request upon the auditor to desist, but he indicated his intention to proceed with the hearing and to issue subpoenas.
The relator prays this court for a writ of prohibition to prevent the respondent from conducting hearings and examinations pertaining to the personal property tax returns of the testator and his estate for the years last above set forth.
The cause was submitted on demurrer to the petition.
Messrs. Andrews, Hadden Putnam, for relator.
Mr. Lester W. Donaldson, prosecuting attorney, for respondent.
Counsel for relator admit in their briefs that the writ of prohibition ordinarily is granted only when there is no other adequate remedy, but urge that an exception should be made in this case to prevent extended and expensive litigation — in other words to decide cases in advance.
We adhere to the principle that the high prerogative writ of prohibition will not issue where there is another adequate remedy. Silliman v. Court of Common Pleas, 126 Ohio St. 338, 185 N.E. 420, and cases therein cited.
The demurrer to the petition is sustained and leave to plead further is given.
Demurrer sustained.
WEYGANDT, C.J., ZIMMERMAN, TURNER, WILLIAMS, MATTHIAS and HART, JJ., concur.
DAY, J., dissents.