State ex rel. Gilla v. Fellerhoff

• Citation: 44 Ohio St.2d 86,73 O.O.2d 328,338 N.E.2d 522
• Decision Date: 26 November 1975
• Docket Number: No. 75-257,75-257
• Parties: , 73 O.O.2d 328 The STATE ex rel. GILLA, Appellant, v. FELLERHOFF, Judge, Hamilton County Municipal Court, Appellee.
• Court: United States State Supreme Court of Ohio

Page 86

44 Ohio St.2d 86

338 N.E.2d 522, 73 O.O.2d 328

The STATE ex rel. GILLA, Appellant, v. FELLERHOFF, Judge, Hamilton County Municipal Court, Appellee.

No. 75-257.

Supreme Court of Ohio.

Nov. 26, 1975.

Stephen W. Young, Cincinnati, for appellant.

Douglass L. Custis, Cincinnati, for appellee.

PER CURIAM.

The question to be decided is whether relator states a cause of action in prohibition.

It is well-settled that:

'A court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction on issue raised, and a party challenging its jurisdiction has a remedy at law in 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.' Paragraph three of the syllabus in State ex rel. Miller v. Court of Common Pleas (1949), 151 Ohio St. 397, 86 N.E.2d 464; State ex rel. Gonzales v. Patton (1975), 42 Ohio St.2d 386, 388, 329 N.E.2d 104; and, as to jurisdiction of Municipal Courts, State ex rel. Indus. Comm. v. Municipal Court (1940), 137 Ohio St. 321, 322, 29 N.E.2d 616.

In the instant case, the Hamilton County Municipal Court determined the question of its jurisdiction prior to the institution of the prohibition proceedings in the Court of Appeals. The proper course of action for relator herein is an appeal from the decision of the Municipal Court. Relator contends, however, that this court's decisions in State ex rel. Safeco Ins. Co. v. Kornowski (1974), 40 Ohio St.2d 20, 317 N.E.2d 920, and State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, 285 N.E.2d 22, have altered the above rule with respect to a party first pursuing his remedy of appeal. Those cases are distinguishable.

In the Gusweiler case, this court, at page 329, 285 N.E.2d at page 24, determined that if the 'inferior court is without jurisdiction whatsoever to act,' the availability of a remedy of appeal is immaterial to the issuance of a writ of prohibition to prevent the resulting injustice. (Emphasis added.) Similarly, in Kornowski, the writ was allowed because the critical language of App.R. 7(B) provided a patent and unambiguous restriction on the monetary jurisdication of the Municipal Court involved.

The case, at bar, however, does not involve such a 'total want of jurisdiction' (Gusweiler), or 'patent and unambiguous' restriction (Kornowski), to warrant dispensing with relator's adequate remedy of appeal. ² Furthermore, prohibition is not a substitute for appeal. State ex rel. Toerner v. Common Pleas Court (1971), 28 Ohio St.2d 213, 277 N.E.2d 209.

The judgment of the Court of Appeals is affirmed for the reason that the complaint for a writ of...