State ex rel. Gyurcsik v. Angelotta

• Decision Date: 29 June 1977
• Docket Number: No. 76-1214,76-1214
• Parties: , 4 O.O.3d 482 The STATE ex rel. GYURCSIK et al., v. ANGELOTTA, Judge.
• Court: Ohio Supreme Court

Page 345

50 Ohio St.2d 345

364 N.E.2d 284, 4 O.O.3d 482

The STATE ex rel. GYURCSIK et al., v. ANGELOTTA, Judge.

No. 76-1214.

Supreme Court of Ohio.

June 29, 1977.

This cause is before this court pursuant to relators' request for a writ of prohibition against Judge John L. Angelotta of the Court of Common Pleas of Cuyahoga County (respondent). On October 30, 1974, two cases Brimm v. Gyurcsik and Elliott v. Gyurcsik were consolidated and called for trial in that court. Plaintiffs, Michael Brimm and Wayne Elliott, did not appear and both actions were dismissed "without prejudice" at plaintiffs' costs, pursuant to an entry dated October 30, 1974. On January 19, 1976, plaintiffs filed a motion to set aside the judgment of dismissal.

Plaintiffs, in their brief in support of the motion, argued that the dismissal was granted despite the fact that they had filed a motion for continuance under the Soldiers' and Sailors' Civil Relief Act, Section 521, Title 50, U.S.Code App., because plaintiff Wayne Elliott was in the armed forces. Plaintiffs contended further that they were unaware that the case had been dismissed and that their motion for a continuance was not ruled upon until receipt over a year after the dismissal of the refund of costs deposited with the court.

On May 27, 1976, respondent granted plaintiffs' motion, and the cases were reinstated. Thereafter, relators-defendants appealed to the Court of Appeals. The appeal of the order was denied as not being a final appealable order. This court denied relators' motion to certify the record on October 28, 1976.

Relators then filed a complaint for a writ of prohibition in this court, claiming that respondent's order of May 27, 1976, reinstating the cases was made in an absence of subject-matter jurisdiction.

Jerome S. Kalur, Cleveland, for relators.

PER CURIAM.

A writ of prohibition is a high prerogative writ issued only in rare circumstances when there is no adequate remedy at law available by way of appeal and where a court attempts to adjudicate a cause over which it has no jurisdiction. State, ex rel. Gargallo, v. Court of Common Pleas (1972), 31 Ohio St.2d 45, 285 N.E.2d 13; State, ex rel. Masterson v. Ohio State Racing Comm. (1955), 164 Ohio St. 312, 130 N.E.2d 829; State, ex rel. McKee, v. Cooper (1974), 40 Ohio St.2d 65, 320 N.E.2d 286.

Civ.R. 60(B) reads, in relevant part:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons: * * * (5) any other reason justifying relief from the judgment. The motion shall be made within a reasonable time * * *."

The staff notes for the fifth ground of Civ.R. 60(B) state that it is based upon Fed.R.Civ.P. 60(b)(6) and is intended as a catch-all provision. It is characterized further as reflecting the inherent power of a court to relieve a person from the unjust operation of a judgment. Justice Black, in Klapprott v. United States (1949), 335 U.S. 601, 69 S.Ct. 384, 93 L.Ed. 266, modified (1949), 336 U.S. 942, 69 S.Ct. 384, 93 L.Ed. 266, recognizing that the "other reason" clause made available all equitable grounds for relief from a final judgment, said, at pages 614, 615, 69 S.Ct. at page 390:

"In simple English, the language of the 'other reason' clause, for all reasons except the five particularly specified, vests power...