State ex rel. City of Dayton v. Kerns, 76-450
| Decision Date | 30 March 1977 |
| Docket Number | No. 76-450,76-450 |
| Citation | 3 O.O.3d 441,49 Ohio St.2d 295,361 N.E.2d 247 |
| Parties | , 3 O.O.3d 441 The STATE ex rel. CITY OF DAYTON, v. KERNS, Presiding Judge, et al. |
| Court | Ohio Supreme Court |
In 1973, Mr. John S. Kucharski and others, a majority of the landowners within an area of approximately 895 acres of land in Mad River Township, filed a petition for annexation of that land to the city of Dayton with the Board of Commissioners of Montgomery County pursuant to R.C. 709.02. The board of county commissioners denied the annexation petition. Kucharski appealed the board's decision to the Court of Common Pleas of Montgomery County. That court reversed the board's decision and entered judgment for Kucharski.
In January of 1976, Mr. Theodore Thies and other Mad River Township property owners opposed to annexation (hereinafter 'Thies') appealed the decision of the Court of Common Pleas to the Court of Appeals for Montgomery County. Shortly after filing the appeal, Thies filed a motion for an injunction pending appeal to prevent the Clerk of the Dayton City Commission from presenting 'the transcript and accompanying map and petition of the captioned annexation' before the 'legislative authority' of the city, and to enjoin that legislative authority from 'passing any resolution or ordinance accepting the application for annexation' pending the appeal. The city clerk was served with a copy of the motion for the temporary injunction with a notice of a hearing on the motion. It appears that neither the city officials nor counsel retained by them to represent the city's interests in that hearing were present at the hearing on the motion for an injunction. On March 1, 1976, the Court of Appeals granted Thies' motion for an injunction pending appeal. The court specifically enjoined the Dayton city clerk from 'laying before the legislative authority' of Dayton 'the transcript and accompanying map and petition of the captioned annexation.' The injunction was not served on the city clerk or on other city officials.
At the Dayton City Commission meeting on March 10, 1976, the city clerk presented the transcript and petition for annexation to the commission. The commission enacted ordinance No. 25084, which purports to annex the Mad River property.
Property owner Kucharski then filed a motion in the Court of Appeals to dismiss the pending Thies appeal. The Court of Appeals overruled the motion to dismiss. It also sustained Thies' motion to stay the annexation, and the court further enjoined the city, its officers, employees and agents from performing any acts in regard to the property subject to ordinance No. 25084 pending disposition of the appeal. In so doing, the court relied on 'the general case law of Ohio' that those not a party to an interlocutory order 'are bound if they have notice or knowledge.' It determined that, because counsel for Kucharski, who was also sometimes employed to represent the city in annexation matters was present at the hearing on the motion for injunction, there was 'actual knowledge of the order' which should 'be charged * * * to the city and its officials.' The Court of Appeals' second, expanded, injunction was served on the city.
The cause is now before the court as an original action by the relator, the city of Dayton, seeking a writ to prohibit the Court of Appeals from continuing to enforce the second, expanded, injunction.
James W. Drake, City Atty., and Edward M. Taylor, Jr., Dayton, for relator.
Lee C. Falke, Pros. Atty., and Herbert Creech, Jr., Dayton, for respondents.
The main issue presented by this cause is whether a writ of prohibition should issue under the facts of the instant controversy. The conditions prerequisite to issuance of a writ of prohibition include:
'* * * (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) it must appear that the refusal of the writ would result in injury for which there is no adequate remedy; (3) the exercise of such power must amount to an unauthorized usurpation of judicial power.' State ex rel. Northern Ohio Telephone Co. v. Winter (1970), 23 Ohio St.2d 6, 8, 260 N.E.2d 827, 828.
The city maintains that prohibition should be granted because the Court of Appeals exercised judicial power, usurped that power, and inflicted injury from which the city has no adequte remedy, when it denied Kucharski's motion to dismiss and sustained Thies' motion to stay annexation and enjoin the city, its officers, employees and agents from providing services to the Mad River property until 'disposition of this appeal.' Since issuing an injunction clearly involves the exercise of judicial power (Northern Ohio Telephone, supra, at page 8, 260 N.E.2d 827), the first prerequisite for prohibition is met. The city maintains further that the order usurps judicial power because the city is not bound by the injunction under Civ.R. 65(D) and because it was never a party to the action giving rise to the injunction. The city also argues that the order usurps judicial power because the city commission validly annexed the Mad River property, and the reason for the injunction is now moot. The city also maintains that it has no adequate remedy of appeal from the court order because it is a nonparty.
Since prohibition will not lie unless all three prerequisites are met, it is not necessary for this court to determine whether the injunction usurps judicial power if the city has an adequate remedy alternative to prohibition. The city correctly contends that appeal from the injunction order is not available as a remedy, for it did not intervene in the Court of Appeals, and it was not served with notice of the appeal or joined in the appeal by the motions of either party or the court itself. The city was therefore not a party to the appeal, and, as a nonparty, it has no right of direct appeal from the adjudication in the Court of Appeals. State ex rel. Jones v. Wilson (1976), 48 Ohio St.2d 349, 358 N.E.2d 605.
However, direct appeal is not the only alternative remedy which will bar prohibition. (See 44 Ohio Jurisprudence 2d,...
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