State ex rel. Phillips v. Polcar

• Decision Date: 01 July 1976
• Citation: 367 N.E.2d 61,51 Ohio App.2d 97,5 O.O.3d 247
• Parties: , 5 O.O.3d 247 The STATE ex rel. PHILLIPS et al. v. POLCAR, Judge, et al. *
• Court: Ohio Court of Appeals

Page 97

51 Ohio App.2d 97

367 N.E.2d 61, 5 O.O.3d 247

The STATE ex rel. PHILLIPS et al. v. POLCAR, Judge, et al. ^*

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 1, 1976.

Syllabus by the Court

1. Where two courts have concurrent and coextensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals. Miller v. Court of Common Pleas of Cuyahoga County, 143 Ohio St. 68, 54 N.E.2d 130.

2. The remedy of prohibition is available to restrain a court from exercising jurisdiction where an identical cause of action has been lodged in another court of concurrent jurisdiction. State ex rel. Gelman v. Common Pleas Court, 172 Ohio St. 70, 173 N.E.2d 343.

McDonnell & Sweeney, Cleveland, for relators.

Paul Mancino, Jr., Cleveland, for respondents.

JACKSON, Judge.

On March 24, 1976, the relators filed a complaint for a writ of prohibition. In that complaint it was alleged that there was pending in the Parma Municipal Court an action identified as 75-CV-E-1600 which was between the same parties and which raised the same issues as case number 934,349 of the Cuyahoga County Court of Common Pleas. Further, it was alleged that the action pending in the Court of Common Pleas was commenced on October 11, 1974, while the claim in the Parma Municipal Court was not filed until August 26, 1975. Relators contend that under these facts the Parma Municipal Court lacks jurisdiction and that, consequently, this court should grant a writ of prohibition to prevent that court from seeking to exercise jurisdiction.

On April 7, 1976, the respondent moved for a dismissal upon the grounds that even if the facts alleged in the complaint were taken as true, it failed to state a claim under which a writ of prohibition could be granted. On April 12, 1976, this court conducted a hearing upon the issues, with counsel for both parties present. It was determined that the matter would be submitted to the court upon the briefs. On April 30, 1976, relators filed their brief in opposition to respondent's motion to dismiss and on May 14, 1976, the time within which respondents were to have filed a reply brief expired.

It is not disputed that the Court of Common Pleas obtained jurisdiction of the claim raised by both proceedings prior to the time the claim was filed in the Parma Municipal Court. Nor is it disputed that under such circumstances the Parma Municipal Court was without jurisdiction to hear the claim over which the Court of Common Pleas had previously obtained jurisdiction. E. g., State ex rel. Gelman v. Common Pleas Court (1961), 172 Ohio St. 70, 173 N.E.2d 343; State ex rel. Miller v. Court of Common Pleas of Lake County (1949), 151 Ohio St. 397, 86 N.E.2d 464; Weenink & Sons v. Court of Common Pleas (1948), 150 Ohio St. 349, 82 N.E.2d 730; Miller v. Court of Common Pleas of Cuyahoga County (1944), 143 Ohio St. 68, 54 N.E.2d 130. The only question before us is whether relators may obtain relief by a writ of prohibition, or whether they must wait until such time as the Parma Municipal Court has rendered a final judgment and seek relief by means of direct appeal.

In Miller v. Court of Common Pleas of Cuyahoga County, supra, at 70, 54 N.E.2d at 131, the Ohio Supreme Court adopted as a substantial portion of its opinion the following statement from Ohio Jurisprudence:

"It is a fundamental rule that, as between courts of concurrent and coextensive jurisdiction, the one whose power is first invoked by the institution of proper proceedings and the service of the required process acquires the right to adjudicate upon the whole issue and to settle the rights of the parties to the exclusion of all other tribunals".

Because of its acceptance of that proposition of law the Supreme Court in Miller granted a writ of prohibition to prevent one domestic relations court from hearing the cause when another court of concurrent jurisdiction had previously obtained jurisdiction. This decision was followed in Weenink & Sons v. Court of Common Pleas, supra, involving two separate actions with respect to a concession contract, and State ex rel. Gelman v. Common Pleas Court, supra, involving actions for divorce that were filed in two separate courts. In both instances, writs of prohibition were allowed and in Gelman, supra 172 Ohio St. at 71-72, 173 N.E.2d at 344, the court unequivocally stated:

"The remedy of prohibition is available to restrain a court from exercising jurisdiction where an identical cause of action between the same parties has previously been lodged in another court of concurrent jurisdiction. Miller v. Court of Common Pleas of Cuyahoga County, 143 Ohio St. 68, 54 N.E.2d 130; John Weenink & Sons Co. v. Court of Common Pleas of Cuyahoga County, supra."

We have given careful consideration to the cases relied upon by the respondent ¹ and conclude that they are not applicable to the case at bar. ² But even if it were assumed arguendo, that those cases were pertinent to the resolution of the issues presently before this court, we would still be bound by State ex rel. Gelman v. Common Pleas Court, supra, which is the Supreme Court's most recent pronouncement upon the exact question before us.

Accordingly, we find that there is merit in relators' complaint and hereby grant the permanent writ of prohibition.

Writ granted.

CORRIGAN and KRENZLER, JJ., concur.

* The judgment in this case was affirmed by the Supreme Court of Ohio, in 50...