State ex rel. Harris v. Common Pleas Court, Division of Probate and Juvenile

• Decision Date: 28 December 1970
• Citation: 25 Ohio App.2d 78,266 N.E.2d 589,54 O.O.2d 115
• Parties: , 54 O.O.2d 115 The STATE ex rel. HARRIS, a Minor, v. COMMON PLEAS COURT, DIVISION OF PROBATE AND JUVENILE, et al.
• Court: Ohio Court of Appeals

Page 78

25 Ohio App.2d 78

266 N.E.2d 589, 54 O.O.2d 115

The STATE ex rel. HARRIS, a Minor, v. COMMON PLEAS COURT, DIVISION OF PROBATE AND JUVENILE, et al.

Court of Appeals of Ohio, Fourth District, Ross County.

Dec. 28, 1970.

Syllabus by the Court

1. The commitment of a fifteen year old to a state institution pursuant to R.C. 2151.26 for the purpose of examination is not an act for which a writ of prohibition will issue.

2. A wirt 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.

Boulger & Boulger, Chillicothe, for relator.

Kenneth T. Stevens, Chillicothe, for respondent Kenneth T. Stevens, Judge.

David Cutright, Pros. Atty., for respondent Fred Heinzelman, sheriff.

GRAY, Presiding Justice.

A complaint for an alternative writ of prohibition and a writ of prohibition has been filed in this court invoking the original jurisdiction of the Court of Appeals.

A fifteen-year-old boy, Nicholas C. Harris, is alleged to have killed Russell Riley Ratcliff in Ross County, Ohio. It is alleged in the complaint that the respondent, Kenneth Stevens, judge of the Juvenile Court of Ross County, would, unless restrained by a writ of prohibition, commit Nicholas C. Harris to the Lima State Hospital.

The offense occurred in Ross County. Under these circumstances the Juvenile Court of Ross County had jurisdiction of the subject matter of the case and also of the person involved therein. On these facts it was the only court which could have had jurisdiction.

We are of the opinion that the three paragraphs of the syllabus of State ex rel. Clary v. Probate Court, 151 Ohio St. 467, 86 N.E.2d 765, are applicable to this case. The three paragraphs are as follows:

'1. A writ of prohibition is not available as a substitute for the remedy of appeal.

'2. Such a writ will not be issued unless it appears that the court or tribunal whose action is sought to be prohibited has no jurisdiction of the cause it is attempting to adjudicate, or is about to exceed its jurisdiction. $t'3. When the question of jurisdiction is one of fact alone, it is peculiarly within the province of a trial court itself to determine the issue.'

Relator is attempting to prevent what he alleges to be the entry of an erroneous judgment of the Juvenile Court. The Supreme Court has answered that question in State ex rel. Rhodes v. Solether, 162 Ohio St. 559, 562, 563, 124 N.E.2d 411, 413:

'Where a court has jurisdiction of the subject matter of a pending action (and it is conceded that the Wood County court does have such jurisdiction), a writ of prohibition will not be awarded to prevent an anticipated erroneous decision in such action or to function as a substitute for an appeal.'

See also State ex rel. Central Stores v. Maiden, 162 Ohio St. 167, 122 N.E.2d 294, and the second paragraph of the syllabus of State ex rel. Winnefeld v. Court of Common Pleas, 159 Ohio St. 225, 112 N.E.2d 27.

At this point we wish to state that in every case decided by a judge, in any court, after the parties know of the court's decision, one party believes that the court is about to enter an erroneous judgment. If we adopt the theory of relator, every case would then be decided by the issuance or non-issuance of a writ of prohibition. This is not the office of such writ. It is a high prerogative writ issued only in rare circumstances when there is no adequate remedy at law available by way of ordinary appeal, and where the court attempts to adjudicate a cause over which it has no jurisdiction.

The lower court has jurisdiction over the person and subject matter in this case and at most, according to relator's theory, it is attempting to enter an erroneous order.

In this connection we wish to cite State ex rel. Staton v. Common Pleas Court, 5 Ohio St.2d 17, 213 N.E.2d 164. In that case a judge of the Court of Common Pleas of Franklin County ordered relatrix to undergo an examination by a physician specializing in neurology and psychiatry with the proviso that her counsel be excluded from such examination. Relatrix refused to take such examination. The order was made on the motion of her employer who stated that relatrix had experienced neurological and psychiatric episodes.

In the opinion, written by Judge Paul Herbert, the following statement from 73 C.J.S. Prohibition § 11, p. 33, is cited with approval:

'Prohibition is a writ which attacks, or raises or tests, only the question of the jurisdiction of the court.' (Emphasis added.)

We have pointed out above that Judge Stevens, the respondent, has both jurisdiction over the subject matter and the person of the relator. This position has not been challenged by the relator.

The court in Staton, speaking through Judge Herbert, at page 22, 213 N.E.2d at page 167, further said:

'There is available to the relatrix an appellate review of the proceedings and orders of the respondent Court of Common Pleas. Prohibition is not concerned with the exercise of discretion by an inferior tribunal having jurisdiction of the subject matter and the parties in a cause before it. That issue is for the determination of a reviewing court.

'This court, in this action in prohibition, is not concerned with the determination of the matter of the examination of the relatrix, whether physical or mental or neither. Whatever order the respondent Court of Common Pleas may enter in the matter of this examination is subject to the orderly procedure of appellate review.

'We are unable to find any occasion for the issuance of a writ of prohibition in the record of the case at bar.' (Emphasis added.)

For these reasons relator has not stated a cause of action in his complaint and it will, therefore, be dismissed.

Complaint dismissed.

ABELE, J., concurs.

STEPHENSON, Judge (concurring).

I concur in the judgment of dismissal of relator's complaint for a writ of prohibition. The pivotal question urged by relator in this case is that, as a matter of law, the Juvenile Court lacks jurisdiction to enter the proposed order.

Relator urges that the Ross County Common Pleas Court, juvenile division, is a court of limited jurisdiction in the exercise of the jurisdiction conferred under R.C. 2151 and no presumption of jurisdiction is applicable as to a court of general jurisdiction. Support for this agrument can be found in State, ex rel. Shonk v. Crist, 114 Ohio App. 304, 182 N.E.2d 10, and State ex rel. Smilack v. Bushong, 93 Ohio App. 201, 112 N.E.2d 675.

Respondents claim, in part, authority to commit under R.C. 2945.40 which is located in the adult criminal code and provides for commitment in any case where insanity is set up as a defense or in which present insanity is under investigation. I agree with relator that this section provides no jurisdictional basis in this case, for the reason that nowhere in R.C. 2151 is any reference to R.C. 2945.40 set forth and for the additional reason that the purposes of commitment under R.C. 2151.26 are for distinct and different purposes than those under R.C. 2945.40.

This court is given jurisdiction in prohibition by Section 3, Article IV of the Ohio Constitution. The writ is not defined in the Constitution nor has it been the subject of legislation and its issuance is controlled by common law principles. State ex rel. Burtzloff v. Vickery, 121 Ohio St. 49, 166 N.E. 894.

With respect to the principles summarized in 44 Ohio Jurisprudence 2d, Prohibition, Sections 8 and 9, it is stated that prohibition is a preventive writ, designed to prevent a tribunal from exercising a jurisdiction with which it has not been invested by law, or exceeding its jurisdiction where it possesses limited jurisdiction. The principles controlling its issuance are:

(1) that the court is about to exercise judicial power;

(2)...