State ex rel. Phillips v. Polcar
| Decision Date | 22 June 1977 |
| Docket Number | No. 76-994,76-994 |
| Citation | 50 Ohio St.2d 279,4 O.O.3d 445,364 N.E.2d 33 |
| Parties | , 4 O.O.3d 445 The STATE ex rel. PHILLIPS et al., Appellees, v. POLCAR, Judge, et al., Appellants. |
| Court | Ohio Supreme Court |
Syllabus by the Court
As between courts of concurrent jurisdiction, the tribunal whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties. (John Weenink & Sons Co. v. Court of Common Pleas, 150 Ohio St. 349, 82 N.E.2d 730, approved and followed.)
The instant cause is before this court upon an appeal by respondents, the Parma Municipal Court and the Honorable Gertrude E. Polcar, judge of that court, from a judgment of the Court of Appeals prohibiting respondents from proceeding with the trial of an action pending in the Parma Municipal Court in which the relators, Daniel C. Phillips, Jr., and Frances Phillips, and persons by the name of Weiss are parties.
At the time of the filing of the suit in the Parma Municipal Court there was pending in the Cuyahoga County Common Pleas Court an action between the relators and the Weisses involving a purchase agreement for real estate wherein the Weisses were seeking specific performance from the relators.
Relators filed a motion in the Parma Municipal Court requesting the dismissal of the Parma action on the ground that the subject-matter of the suit was the same as that in the action pending in the Cuyahoga County Common Pleas Court. The motion was overruled and relators sought a writ of prohibition against the respondents in the Court of Appeals.
Relators state in their brief that after that court allowed an alternative writ, counsel for the relators and respondents appeared before the Honorable Leo A. Jackson, a judge in the Court of Appeals, who inquired of counsel for respondents if there was any dispute as to the accuracy of the allegations in the complaint. Relators state further that the attorney for the respondents indicated that there would be no need for the appointment of a referee and that the case could be determined on the allegations of the complaint and briefs of the parties. The court then ordered the relators to file their answer brief on May 14, 1976. Relators filed their brief on April 30, 1976. However, the respondents have not as yet filed a reply brief. On July 1, 1976, the Court of Appeals allowed the writ.
The cause is before this court on appeal as a matter of right.
McDonnell & Sweeney and Daniel P. McDonnell, Cleveland, for appellees.
Mancino, Mancino & Mancino and Paul Mancino, Jr., Cleveland, for appellants.
The judgment of the Court of Appeals allowing the writ is affirmed.
The respondents-appellants present two issues for resolution.
The respondents' motion to dismiss was filed on April 7, 1976, and was treated by the Court of Appeals as an admission of facts contained in the complaint. On June 29, 1976 the court overruled the motion. Under Civ.R. 12(A)(2), the respondents then had 14 days to file an answer. However, on July 1, 1976, three days after the motion had been overruled, the court granted judgment for the relators. The respondents claim that in granting the judgment the appellate court denied them due process of law. As a matter of law, they argue, the court should not have been able to enter a judgment for the respondents until the entire period of time had passed under Civ.R. 12.
As to this issue, this court finds no error.
While before the appellate judge, the parties agreed that " * * * the matter * * * (could) be submitted to the court upon briefs." Since neither of the parties presented any factual disputes and since the respondents' motion to dismiss raised only legal questions concerning, inter alia, the adequacy of the relators' remedy at law by way of appeal, the...
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