State ex rel. Kriss v. Richards

• Decision Date: 24 May 1921
• Docket Number: No. 16941.,16941.
• Parties: STATE ex rel. KRISS v. RICHARDS et al., Judges.
• Court: Ohio Supreme Court

102 Ohio St. 455
132 N.E. 23

STATE ex rel. KRISS
v.
RICHARDS et al., Judges.

No. 16941.

Supreme Court of Ohio.

May 24, 1921.

Application by the State, on the relation of Frederick P. Kriss, for a writ of prohibition against one Richards and others, Judges of the Court of Appeals. Writ denied.

This is an original action filed in this court, invoking the remedy of prohibition against the Court of Appeals of the Sixth Appellate District, sitting in the county of Lucas, Ohio.

The petition avers that defendants, as judges of said Court of Appeals, rendered a judgment of reversal against relator, Frederick P. Kriss, in a civil proceeding in error pending in said court, and numbered 966 on the docket thereof; that there was no constitutional question involved in the record, and that the judgment so rendered was final; that thereafter a motion was filed by relator for the vacation of the judgment of reversal and the dismissal of the cause, upon a claimed want of jurisdiction of the parties and subject-matter; and that the transcript of the docket and journal entries from the trial court showed an inconsistency, or rather a duplication of judgment entries.

From the narrative allegations of the petition in prohibition it appears that after judgment in the trial court in favor of the present relator, entered March 16, 1920, opposing counsel filed a motion to vacate the entry overruling their motion for a new trial, for the admitted purpose of an extension of time, in order that the court stenographer might complete the bill of exceptions, there being just at that time an unusual demand for the completion of bills of exceptions in other cases; that the trial court on the 31st day of March vacated said former order, but through some mistake, or otherwise, the entry of vacation which was filed failed to vacate the judgment of March 16; that on April 2 the court again overruled the motion for a new trial, and a second time entered up judgment in favor of present relator, the transcript of journal entries thus showing two judgments exactly alike on March 16 and April 2, 1920, in the same cause, against the same party, and in favor of the same party; and that on the 27th day of May, 1920, a petition in error was filed in the court of appeals, which was 72 days after the entry of the judgment of March 16, but within ample time after the entry of the judgment of April 2.

Upon hearing on this petition in error the Court of Appeals reversed the judgment obtained by this relator...