City of Middleburg Heights v. Brown

• Decision Date: 11 June 1986
• Docket Number: No. 85-702,85-702
• Citation: 24 OBR 215,493 N.E.2d 547,24 Ohio St.3d 66
• Parties: , 24 O.B.R. 215 CITY OF MIDDLEBURG HEIGHTS, Appellant, v. BROWN, Judge, Appellee.
• Court: Ohio Supreme Court

Page 66

24 Ohio St.3d 66

493 N.E.2d 547, 24 O.B.R. 215

CITY OF MIDDLEBURG HEIGHTS, Appellant, v. BROWN, Judge, Appellee.

No. 85-702.

Supreme Court of Ohio.

June 11, 1986.

James N. Walters, III, Cleveland, and Frank J. Groh-Wargo, Berea, for appellant.

John T. Corrigan, Pros. Atty., and Ralph P. Sobieski, Columbus, for appellee.

PER CURIAM.

Although the court of appeals dismissed the complaint in prohibition, we consider the issues it raises on the merits. "In an appeal as of right from a judgment of the court of appeals involving an extraordinary writ, this court will consider the case as if the action originally had been filed here." In re Petition for Mallory (1985), 17 Ohio St.3d 34, 476 N.E.2d 1045.

The pertinent part of Civ.R. 41 reads:

"(A) Voluntary dismissal: effect thereof.

"(1) By plaintiff; by stipulation. Subject to the provisions of Rule 23(E) and Rule 66, an action may be dismissed by the plaintiff without order of court (a) by filing a notice of dismissal at any time before the commencement of trial unless a counterclaim which cannot remain pending for independent adjudication by the court has been served by the defendant or (b) by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court, an action based on or including the same claim.

"(2) By order of court. Except as provided in subsection (1) an action shall not be dismissed at the plaintiff's instance except upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice." (Emphasis added.)

Where it does not otherwise affirmatively appear from the record, it will be presumed that a court of general jurisdiction lawfully acquired and exercised its jurisdiction. Cf. Paulin v. Sparrow (1915), 91 Ohio St. 279, 110 N.E. 528, paragraph one of the syllabus. A court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction, and the party challenging its jurisdiction has a remedy via appeal from an adverse holding of the court that it has such jurisdiction, and may not maintain a proceeding in prohibition to prevent the prosecution of such action. Bobb v. Marchant (1984), 14 Ohio St.3d 1, 4, 469 N.E.2d 847; State, ex rel. Miller, v. Court (1949), 151 Ohio St. 397, 86 N.E.2d 464 , paragraph three of the syllabus.

In the present case, we find that Civ.R. 41(A)(2) applies. In the underlying action, defendant Dome Energicorp pleaded its counterclaim by filing it prior to the city's attempted dismissal one minute later. Dome Energicorp "objected" to the city's dismissal, we believe, when it entered an amicus curiae appearance in the instant action in the court of appeals urging denial of the writ. Because of the presumption of regularity in the trial court's proceedings, and our deference to its determination of its own jurisdiction, we assume, absent evidence to the contrary, ² that Dome Energicorp's counterclaim cannot be independently adjudicated if...