State ex rel. Henry v. Britt

• Decision Date: 01 July 1981
• Docket Number: No. 80-724,80-724
• Citation: 424 N.E.2d 297,21 O.O.3d 45,67 Ohio St.2d 71
• Parties: , 21 O.O.3d 45 The STATE, ex rel. HENRY, v. BRITT, Judge, et al.
• Court: Ohio Supreme Court

Page 71

67 Ohio St.2d 71

424 N.E.2d 297, 21 O.O.3d 45

The STATE, ex rel. HENRY, v. BRITT, Judge, et al.

No. 80-724.

Supreme Court of Ohio.

July 1, 1981.

Porter, Wright, Morris & Arthur, James E. Pohlman and Roberta Y. Bavry, Columbus, for relator.

Michael Miller, Pros. Atty., and James R. Kirk, Columbus, for respondent.

Wolske & Blue, Walter J. Wolske, Jr., and Dennis M. McCarthy, Columbus, for intervenor-respondent.

PER CURIAM.

The issue before this court is whether a writ of prohibition should issue in this cause to prevent the respondent court from proceeding with the Civ.R. 60(A) motion now before it.

Prohibition is an extraordinary remedy which is customarily granted with caution and restraint, and is issued only in cases of necessity arising from the inadequacy of other remedies. In the recent case of State ex rel. Wall v. Grossman (1980), 61 Ohio St.2d 4, 398 N.E.2d 789, this court set forth the following conditions which must exist to support the issuance of a writ of prohibition: " '(1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy.' State ex rel. Lehmann, v. Cmich (1970), 23 Ohio St.2d 11, 260 N.E.2d 835." See, also, Ohio Bell v. Ferguson (1980), 61 Ohio St.2d 74, 76, 399 N.E.2d 1206, and cases cited therein.

Relator argues that respondent is unauthorized by law to act on intervenor's Civ.R. 60(A) motion.

This court has often had the opportunity to address the question whether a writ of prohibition should be used to prevent the exercise of jurisdiction by an inferior court.

"It is established law in Ohio that '(a) court having general jurisdiction of the subject matter of an action has authority to determine its own jurisdiction on the 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.' State ex rel. Miller v. Court of Common Pleas (1949), 151 Ohio St. 397, 86 N.E.2d 464, paragraph three of the syllabus; State ex rel. Gilla v. Fellerhoff (1975), 44 Ohio St.2d 86, 87, 338 N.E.2d 522; State ex rel. Gonzales v. Patton (1975), 42 Ohio St.2d 386, 388, 329 N.E.2d 104. The corollary to that general rule is that '(w)here there is a total want of jurisdiction on the part of a court, a writ of prohibition will be allowed * * *.' State ex rel. Adams v. Gusweiler (1972), 30 Ohio St.2d 326, paragraph two of the syllabus, 285 N.E.2d 22." State ex rel. Bd. of County Commrs. v. Court of Common Pleas (1978), 54 Ohio St.2d 354, 376 N.E.2d 1343.

Civ.R. 60(A) provides that "(c)lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time on its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed in the appellate court, and thereafter while the appeal is pending may be so corrected with leave of the appellate court." This is a power the courts have always had. Gagnon v. United States (1904), 193 U.S. 451, 24 S.Ct. 510, 48 L.Ed. 745; American Trucking Associations v. Frisco Transportation Co. (1958), 358 U.S. 133, 79 S.Ct. 170, 3 L.Ed.2d 172.

In this case, intervenor is seeking to invoke Civ.R. 60(A) after an appeal. ² Whether such action is proper is discussed in 6A Moore's Federal Practice, Paragraph 60.08(3), at pages 4072-4073, where it is stated:

"There has been a certain amount of confusion in the cases as to whether or not Rule 60(a) permits the lower court to correct clerical mistakes and errors of oversight and omission after the case has been considered on appeal, and remanded to the lower court with appropriate mandate. (Indicating that motion under R. 60(a) may be made in the lower court after appeal: Rigopoulos v. Kervan (S.D.N.Y.1943), 53 F.Supp. 829, * * * In re Harbor Stores Corp. (S.D.N.Y.1940), 33 F.Supp. 360. * * * For cases indicating that correction under Rule 60(a) cannot be made after appeal see: Home Indemnity Co. of New York v. O'Brien (C.C.A.6th, 1940), 112 F.2d 387; Albion-Idaho Land Co. v. Adams (D.Idaho 1945), 58 F.Supp. 579.) Rule 60(a) contains no specific provision on this point, but the tenor of the 1946 amendment indicates that such errors may be corrected by the lower court after the case has been remanded by the appellate court, even without leave of the latter court. If the application of Rule 60(a) is properly restricted to 'clerical errors' and errors arising from 'oversight or omission', then no harm will result from the correction by the lower court without any leave being obtained from the appellate court. While this is particularly true where the remand is for further proceedings, the district court should...