84 N.E.2d 918 (Ohio 1949), 31706, State ex rel. Shively v. Nicholas

Docket Nº31706.
Citation84 N.E.2d 918, 151 Ohio St. 179
Opinion JudgeWEYGANDT, Chief Justice.
Party NameSTATE ex rel. SHIVELY v. NICHOLAS, Judge.
AttorneyIrvin Carl Delscamp, of Dayton, for respondent.
Judge PanelTAFT, ZIMMERMAN, and STEWART, JJ., dissenting in part. MATTHIAS, HART, and TURNER, JJ., concur. ZIMMERMAN, STEWART, and TAFT, JJ., dissent. TAFT, Judge (dissenting in part). ZIMMERMAN and STEWART, JJ., concur in the foregoing dissenting opinion.
Case DateMarch 23, 1949
CourtUnited States State Supreme Court of Ohio

Page 918

84 N.E.2d 918 (Ohio 1949)

151 Ohio St. 179

STATE ex rel. SHIVELY

v.

NICHOLAS, Judge.

No. 31706.

Supreme Court of Ohio

March 23, 1949

Syllabus by the Court.

1. Under the provisions of Section 12285, General Code, a writ of mandamus may be employed to require the exercise of judicial discretion but not to control it.

Page 919

2. A writ of mandamus may not be invoked as a substitute for the remedy of appeal.

In Mandamus.

In this action the relatrix has invoked the original jurisdiction of this court for the purpose of obtaining a writ of mandamus against the respondent as a judge of the Court of Common Pleas of Montgomery county, Ohio.

In her amended petition the relatrix alleges that she is a party in each of two actions pending in the Court of Common Pleas of Montgomery county; that the first of these was instituted in the year 1947 by her husband to obtain the partition of certain property owned jointly by them and occupied by her as a home; that the court rendered a decree ordering a sale of the property; that said decree was affirmed by the Court of Appeals; that said property is about to be sold; that during the pendency of her husband's action for partition the relatrix instituted an action in that court for the purpose of securing a divorce and alimony; that in her divorce action she asked also that the court restrain the other parties in the partition action from proceeding with the sale of the property; that a temporary restraining order was denied; and that the court refused to allow her temporary alimony.

In the prayer of her petition the relatrix asks this court to issue a writ of mandamus to compel the respondent judge to allow a temporary restraining order[151 Ohio St. 180] without bond in the divorce action to restrain the other parties in the partition action from proceeding with the sale of the property; and the relatrix asks further that this court command the respondent judge to allow her temporary alimony in the amount of $35 per week.

To the petition of the relatrix the respondent judge has filed a demurrer based on the following grounds:

'(1) Because said petition does not state facts sufficient to constitute or show a cause of action for mandamus.

'(2) The petition and exhibit 2 [the journal entry] show that the respondent has exercised his jurisdiction in the above matters and things complained of by the relator; and respondent has determined and adjudicated all matters shown in exhibit 2, journalized February 7, 1949, and there isn't anything pending before respondent, at this time to pass or act upon, nor was there anything pending before respondent at the time of...

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11 practice notes
  • 218 N.E.2d 428 (Ohio 1966), 39846, State ex rel. Sibarco Corp. v. City of Berea
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 6 Julio 1966
    ...of Botkins, 141 Ohio St. 437, 48 N.E.2d 865, 148 A.L.R. 205, paragraph one of the syllabus; State ex rel. Shively v. Nicholas, Judge, 151 Ohio St. 179, 181, 84 N.E.2d 918; State ex rel. City of Cincinnati v. Miller et al., Public Utilities Comm., 149 Ohio St. 45, 77 N.E.2d 465; State ex rel......
  • 95 N.E.2d 276 (Ohio App. 2 Dist. 1950), Shively v. Shively
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 25 Mayo 1950
    ...Court on demurrer to the petition. The opinion of the Court in that case is reported under the title: State ex rel. Shively v. Nicholas, 151 Ohio St. 179, 84 N.E.2d 918. The court held that a writ of mandamus may be employed to require the exercise of judicial discretion but not to control ......
  • 228 N.E.2d 631 (Ohio 1967), 40506, State ex rel. Pressley v. Industrial Commission
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 19 Julio 1967
    ...to exercise jurisdictional discretion but those courts are required to deny the writ. (State ex rel. Shively v. Nicholas, Judge, 151 Ohio St. 179, 84 N.E.2d 918, and State ex rel. Sibarco Corp. v. City of Berea, 7 Ohio St.2d 85, 218 N.E.2d 428, approved [11 Ohio St.2d 142] and followed.) (N......
  • 123 N.E.2d 23 (Ohio 1954), 33933, State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission of Ohio
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 8 Diciembre 1954
    ...See State ex rel. Boss v. Carpenter, supra; Freon v. Carriage Co., 42 Ohio St. 30, 51 Am.Rep. 794; State ex rel. Shively v. Nicholas, 151 Ohio St. 179, 84 N.E.2d 918. A careful review of the decisions of this court indicates that the following principles are to be applied in considering whe......
  • Request a trial to view additional results
11 cases
  • 218 N.E.2d 428 (Ohio 1966), 39846, State ex rel. Sibarco Corp. v. City of Berea
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 6 Julio 1966
    ...of Botkins, 141 Ohio St. 437, 48 N.E.2d 865, 148 A.L.R. 205, paragraph one of the syllabus; State ex rel. Shively v. Nicholas, Judge, 151 Ohio St. 179, 181, 84 N.E.2d 918; State ex rel. City of Cincinnati v. Miller et al., Public Utilities Comm., 149 Ohio St. 45, 77 N.E.2d 465; State ex rel......
  • 95 N.E.2d 276 (Ohio App. 2 Dist. 1950), Shively v. Shively
    • United States
    • Ohio United States Court of Appeals (Ohio)
    • 25 Mayo 1950
    ...Court on demurrer to the petition. The opinion of the Court in that case is reported under the title: State ex rel. Shively v. Nicholas, 151 Ohio St. 179, 84 N.E.2d 918. The court held that a writ of mandamus may be employed to require the exercise of judicial discretion but not to control ......
  • 228 N.E.2d 631 (Ohio 1967), 40506, State ex rel. Pressley v. Industrial Commission
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 19 Julio 1967
    ...to exercise jurisdictional discretion but those courts are required to deny the writ. (State ex rel. Shively v. Nicholas, Judge, 151 Ohio St. 179, 84 N.E.2d 918, and State ex rel. Sibarco Corp. v. City of Berea, 7 Ohio St.2d 85, 218 N.E.2d 428, approved [11 Ohio St.2d 142] and followed.) (N......
  • 123 N.E.2d 23 (Ohio 1954), 33933, State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission of Ohio
    • United States
    • Ohio United States State Supreme Court of Ohio
    • 8 Diciembre 1954
    ...See State ex rel. Boss v. Carpenter, supra; Freon v. Carriage Co., 42 Ohio St. 30, 51 Am.Rep. 794; State ex rel. Shively v. Nicholas, 151 Ohio St. 179, 84 N.E.2d 918. A careful review of the decisions of this court indicates that the following principles are to be applied in considering whe......
  • Request a trial to view additional results