State ex rel. Pajestka v. Faulhaber, 76-1013

• Decision Date: 27 April 1977
• Docket Number: No. 76-1013,76-1013
• Citation: 362 N.E.2d 263,4 O.O.3d 113,50 Ohio St.2d 41
• Parties: , 4 O.O.3d 113 The STATE ex rel. PAJESTKA et al., Appellants, v. FAULHABER, Mayor, Appellee.
• Court: Ohio Supreme Court

Page 41

50 Ohio St.2d 41

362 N.E.2d 263, 4 O.O.3d 113

The STATE ex rel. PAJESTKA et al., Appellants, v. FAULHABER, Mayor, Appellee.

No. 76-1013.

Supreme Court of Ohio.

April 27, 1977.

Cain & Hann and Arthur L. Cain, Cleveland, for appellants.

Cecil P. Mauk, Cleveland, director of law, for appellee.

PER CURIAM.

It is apparent that counsel for appellants filed his motion for reconsideration pursuant to App.R. 26, which prescribes the proper procedure for making application for reconsideration. However, App.R. 1 specifically states that the appellate rules govern procedure in appeals to courts of appeal from the trial courts.

In the instant cause, appellants brought a mandamus action in the Court of Appeals, invoking that court's original jurisdiction granted in Section 6, Article IV of the Ohio Constitution. Thus the appellants mistakenly attempted to file a motion not prescribed for a court having original jurisdiction.

The proper remedy for appellants in this situation is to file a motion for relief from judgment under Civ.R. 60(B)(5). This rule provides that a party may obtain relief from the final judgment, order or proceeding of a court for any reason justifying relief from the judgment, provided that such motion is made 'within a reasonable time.'

Since the appellants improperly requested relief from the order of the Court of Appeals, this court affirms the action of that court in overruling the appellants' motion for reconsideration.

Judgment affirmed.

C. WILLIAM O'NEILL, C. J., and CELEBREZZE, WILLIAM B. BROWN, PAUL W. BROWN, SWEENEY and LOCHER, JJ., concur.

HERBERT, J., concurs in the judgment.