State ex rel. Mastracci v. Rose

• Decision Date: 04 March 1947
• Citation: 72 N.E.2d 582,79 Ohio App. 556
• Parties: STATE ex rel. MASTRACCI v. ROSE et al.
• Court: Ohio Court of Appeals

72 N.E.2d 582

79 Ohio App. 556

STATE ex rel. MASTRACCI v. ROSE et al.

Court of Appeals of Ohio, Second District, Franklin.

March 4, 1947

Joseph M. Harter, of Columbus, for plaintiff.

Horace S. Kerr, of Columbus, for respondents.

MILLER Judge.

This is an action for a writ of prohibition seeking to enjoin two of the Judges of the Court of Common Pleas of Franklin County Ohio, from hearing a proceeding in contempt against the relator for the failure to pay temporary alimony in compliance with a previous court order. The application is based upon the contention that the pleadings show that the parties to the action for alimony were living and cohabiting together at the time of the granting of the award, and that under such circumstances G.C. § 11994 does not authorize the granting of temporary alimony, and that the trial court exceeded its jurisdiction.

It is further contended that the relator has no adequate remedy at law as the award was not a final order from which an appeal could be prosecuted and that if the award was complied with and payments made, recovery could not be had after the prosecution of error from the final order and a reversal, as the beneficiary would have spent the money. The respondents have filed a demurrer to the petition.

It is well settled that a writ of prohibition lies only when the inferior court proposes to exceed its lawful jurisdiction as to the person or the subject matter, or in the enforcement of its rulings in a manner or by means not entrusted to its judgment or discretion, and the party seeking the writ is without other adequate remedy. It is not an appropriate remedy for the correction of errors and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate. The issuance of the writ would not be justified by an insufficiency of the statement of a cause of action or because of insufficient proof to sustain a cause of action. Questions of such nature do not go to the jurisdiction of the inferior court, but are rather questions of fact and law to be determined in the action there pending. On application for a writ of prohibition to stay an action of inferior court the sole question to be determined is the jurisdiction of that court, and the court in which the relief is sought will not consider any mere error or irregularity occurring in the progress of the case in the inferior court. 2 Spelling on Injunctions and Extraordinary Remedies, 2d Ed., Section 1716; High on Extraordinary Legal Remedies, 3d Ed., Section 767b; State ex rel. Nolan v. Clen Dening, 93 Ohio St. 264 112 N.E. 1029; State ex rel. Garrison v. Brough et al., 94 Ohio St. 115, 113 N.E. 683; Kelley v. State ex rel., 94 Ohio St. 331, 114 N.E. 255.

Now did the Court have jurisdiction to make an award of temporary alimony under the state of facts? The respondents are two Judges of the Court of Common Pleas, one of whom is assigned to the Division of Domestic Relations under G.C. § 1532. The Common Pleas Court is the court of general jurisdiction in Ohio. The Constitution itself confers no jurisdiction whatever upon the Common Pleas Court either in civil or...