Opinion
No. 28043
Decided March 27, 1940.
Mandamus and prohibition — Judicial discretion not controlled — Writ of prohibition not substitute for appeal Anticipated erroneous judgment not prevented — Changing date of probate of will.
IN MANDAMUS and PROHIBITION.
Relator as executor prays from this court a writ of mandamus commanding the respondent probate judge to reinstate the date of November 23, 1938, on an order admitting a will to probate, or to change the date of the order of probate from November 25, 1938, to November 23, 1938. Relator also seeks a writ of prohibition restraining the respondent from hearing or deciding a motion by heirs to change the date from November 23, 1938, to November 25, 1938.
Mr. Frank C. Leyshon, for relator.
Mr. Jess J. Fazekas, Messrs. Moore Moore, Mr. George D. Dugan and Mr. James W. Bell, for respondent.
A writ of mandamus will not lie to control judicial discretion. Section 12285, General Code.
A writ of prohibition cannot be invoked as a substitute for an appeal and will not be issued to prevent an anticipated erroneous judgment. State, ex rel. Norris, v. Hodapp, Judge, 135 Ohio St. 26, 18 N.E.2d 984, and authorities cited therein.
Demurrer to petition sustained and writs denied.
Writs denied.
WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.