State ex rel. Millington v. Weir
| Decision Date | 26 September 1978 |
| Citation | 60 Ohio App.2d 348,14 O.O.3d 310,397 N.E.2d 770 |
| Parties | , 14 O.O.3d 310 The STATE ex rel. MILLINGTON v. WEIR, Director. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
The requirement in R.C. 2731.04 that an application for a writ of mandamus be verified by an affidavit is no longer applicable.
Steven L. Ball, Columbus, for relators.
William J. Brown, Atty. Gen., Donald Guittar, and Perry R. Silverman, Asst. Attys. Gen., for respondent.
Defendant moved to strike relators' affidavit as not being in compliance with R.C. 2731.04 and further to dismiss relators' amended petition for lack of jurisdiction over the subject matter of the action, lack of jurisdiction over the person of the defendant, and for failure to state a claim upon which relief can be granted.
Defendant's motions are overruled.
The basic issue is whether the civil rules apply to a mandamus action commenced in this court pursuant to its jurisdiction granted in Section 3(B) (1), Article IV, Ohio Constitution.
While R.C. 2731.02 provides that subject matter jurisdiction over mandamus actions is vested in the Supreme Court of Ohio and the Courts of Appeals, as well as Courts of Common Pleas, the jurisdiction of the Supreme Court and the Courts of Appeals is constitutional and the language in R.C. 2731.02 is surplusage as to those courts. Thus, a mandamus action is a special statutory proceeding in the Common Pleas Court only.
Nonetheless, procedure for all mandamus actions is set forth in R.C. Chapter 2731. The issue is whether the civil rules apply rather than the procedure set forth by R.C. Chapter 2731, at least as to a constitutional proceeding in a Court of Appeals.
Civ.R. 1 provides that the civil rules are to be followed in all courts of this state in the exercise of civil jurisdiction. The only possible exception as related to a mandamus action is the limited exception for special statutory actions as provided by Civ.R. 1(C)(7). That exception does not apply, however, since mandamus jurisdiction in this court is not statutory, but constitutional. Hence, the procedure in R.C. 2731.04 where inconsistent with the civil rules is no longer applicable. The only inconsistency is that part of R.C. 2731.04 which provides that the application for the writ of mandamus must be verified by affidavit. Civ.R. 11 eliminates the requirement of an affidavit except when otherwise specifically provided by the civil rules. Civ.R. 11 applies fully to mandamus actions in this court. Hence, the petition (or complaint) need not be verified or accompanied by an affidavit as the requirements of R.C. 2731.04 are superseded by the civil rules.
Even where mandamus is a special statutory proceeding, as in Common Pleas Court, the same result would follow. Civ.R. 1(C)(7) states that the civil rules apply in special statutory proceedings except where by their nature they are clearly inapplicable. The civil rules should be held to be clearly inapplicable only when their use will alter the basic statutory purpose for which the specific procedure was originally provided in the special statutory action. The provision for verification is not an inherent part of mandamus so that an elimination of that requirement will alter the basic nature of a mandamus action as contemplated by the General Assembly. Moreover, at the time R.C. 2731.04 was adopted, establishing procedure for all mandamus actions, there was a general requirement for verification of petitions in civil actions. The requirement of verification in a mandamus action was not intended to be special for mandamus actions, but merely intended to make mandamus procedure consistent with civil procedure otherwise.
Defendant contends that since a peremptory writ of mandamus has been requested, and may, pursuant to R.C. 2731.06, be issued without notice to the defendant, an affidavit should be required, as is required for a temporary restraining order, pursuant to ...
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