State ex rel. McCamey v. Court of Common Pleas of Cuyahoga County

• Decision Date: 16 June 1943
• Docket Number: 29449.
• Citation: 49 N.E.2d 761,141 Ohio St. 610
• Parties: STATE ex rel. McCAMEY v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al.
• Court: Ohio Supreme Court

49 N.E.2d 761

141 Ohio St. 610

STATE ex rel. McCAMEY v. COURT OF COMMON PLEAS OF CUYAHOGA COUNTY et al.

No. 29449.

Supreme Court of Ohio

June 16, 1943

Syllabus by the Court.

1. A writ of mandamus is an appropriate remedy to compel an inferior tribunal to proceed in a matter within its jurisdiction, but cannot be invoked to correct errors of judgment. (State ex rel. Morgenthaler v. Crites, 48 Ohio St. 460, 28 N.E. 178, approved and followed.)

2. Where an action is pending and undetermined in a court of competent jurisdiction and such court is proceeding to discharge its functions, no other court has authority, by writ of mandamus, to control the orders or judgment of the court wherein the cause is pending. Any party aggrieved by the judgment has a full and complete remedy at law.

Appeal from Court of Appeals, Cuyahoga County.

This cause had its origin and was tried in the Court of Appeals upon the pleadings and the evidence; the relief sought was a writ of mandamus to compel the Court of Common Pleas of Cuyahoga county to reclassify, as an action at law, a cause pending in that court in which relatrix Julia McCamey, is plaintiff and Harry F. Payer, one of the respondents, is defendant; also a writ of prohibition to prevent the court from appointing a referee in that action.

The record discloses substantially these facts: The respondent Harry F. Payer, an attorney at law, represented the relatrix before the Industrial Commission of Ohio and recovered a substantial award in her behalf growing out of the death of her husband; relatrix subsequently filed an action in the Court of Common Pleas of Cuyahoga county wherein she was plaintiff and Payer was defendant; the cause was docketed as an action at law and numbered 444-449; the basis of that action was the claim that the defendant Payer had wrongfully withheld a large sum of money belonging to the plaintiff out of the award from the Industrial Commission; the prayer of the petition was for a money judgment in the sum of $2,938 together with interest.

Numerous pleadings were filed by the defendant Payer. The issues were finally joined by the petition, the third amended answer and counterclaim and the reply. Prior to the filing of the third amended answer and counterclaim the case was placed upon the pretrial docket, came on for hearing, and upon application of defendant Payer was transferred to the equity docket. The third amended answer and counterclaim admits the withholding of the sum set forth in the petition from the award recovered and asserts that such sum was withheld by virtue of a release signed by the plaintiff therein; that such sum was less than the fair and reasonable compensation for the services rendered; and it is sought to impress a lien upon the funds in the possession of the defendant Payer.

The reply asserts that the counterclaim is barred by the statute of limitations and that the release was secured by misrepresentation and fraud.

The petition in the instant case alleges that the issues made by the pleadings are still before the Court of Common Pleas of Cuyahoga county for determination; that the classifying of the case as an equity case and the transferring thereof to the equity docket deprived plaintiff of her constitutional right of trial by jury; that should a referee be appointed she will be called upon to furnish security for costs which would be prohibitive and which she would be unable to furnish; that she therefore would be without access to the courts for redress of a wrong; that the action is one at law and that no equitable principles are involved.

The Court of Appeals upon the hearing denied the application.

The cause is here upon an appeal as of right.

Lawrence A. Tucker and Martin J. Monahen, both of Cleveland, for relatrix.

William J. Corrigan and Payer, Bleiweiss & Cook, all of Cleveland, for respondents.

BELL Judge.

The sole question for determination is, Did the Court of Appeals err in its conclusions and judgment?

Although the relatrix prays for a writ of mandamus and a writ of prohibition, this case must stand or fall upon her right to the issuance of a writ of mandamus for the reason that if the Common Pleas Court...