State ex rel. Gross v. Marshall, 74-281

• Decision Date: 10 July 1974
• Docket Number: No. 74-281,74-281
• Citation: 39 Ohio St.2d 92,68 O.O.2d 54,314 N.E.2d 170
• Parties: , 68 O.O.2d 54 The STATE et rel. GROSS et al., Appellants, v. MARSHALL, Judge, Appellee.
• Court: Ohio Supreme Court

Page 92

39 Ohio St.2d 92

314 N.E.2d 170, 68 O.O.2d 54

The STATE et rel. GROSS et al., Appellants, v. MARSHALL, Judge, Appellee.

No. 74-281.

Supreme Court of Ohio.

July 10, 1974.

Appellee, a judge of the Court of Common Pleas of Shelby Courty, presided over a case in which appellant Gross was plaintiff and appellant Freed acted as his attorney. On October 3, 1973, appellants began to take the deposition of a witness in that case. At the end of the day the deposition had not been completed, and it was continued to Octover 17, 1973.

On October 11, 1973, the defendant filed a motion alleging that the plaintiff and his attorney were 'attempting to discover information which is not relevant nor pertinent,' and requesting that the taking of any further depositions be suspended 'until such time as the taking of said depositions may be made personally before the court * * *.' Resumption of the interrupted deposition, scheduled for October 17, 1973, was continued pending a hearing on the motion.

The motion was heard on October 29, 1973, on which date appellee filed an order and judgment entry requiring that any depositions taken in the case by attorney Freed for Gross be conducted before a referee appointed by the court; making attorney Freed responsible for all costs incurred in such depositions, including compensation for the referee and other court personnel involved; and requiring Freed to deposit $150 as security for the costs.

On November 21, 1973, appellants Filed a complaint in the Court of Appeals seeking a writ of prohibition staying the proceedings until a final determination be made, and barring appellee from enforcing his order of October 29, 1973. A motion to dismiss the complaint was filed by appellee on November 28, 1973, which motion was sustained on December 17, 1973. Pursuant to appellants' application for reconsideration, the court reaffirmed its decision dismissing the complaint, and, on January 29, 1974, filed a judgment entry to that effect. It is from that judgment that the cause was appealed to this court, as a matter of right.

Gaier, Pratt, Freed & Hallows and James H. DeWeese, Piqua, for appellants.

Garmhausen, Kerrigan, & Elsass Co., L. P. A., and Thomas W. Kerrigan, Sidney, for appellee.

PAUL W. BROWN, Justice.

The question before this court is whether a writ of prohibition is a proper procedure by which appellants may seek relief from appellee's order of October 29, 1973. This court shares the opinion of the Court of Appeals that that extraordinary remedy is inappropriate in this case, and we therefore affirm its judgment.

The present controversy stems from an order of the Court of Common Pleas relating to the conduct of discovery proceedings by one of the parties in litigation before it. Such orders have been specifically held interlocutory, and thus not subject to immediate appellate review, Kennedy v. Chalfin (1974), 38 Ohio St.2d 85, 310 N.E.2d 233; Klein v. Bendix-West-inghouse Co. (1968), 13 Ohio St.2d 85, 234 N.E.2d 587. Addressing the question of when issuance of a writ of prohibition is proper, this court, in the first paragraph of the syllabus in State ex rel. Station v. Common...