State ex rel. Rhodes v. Solether
| Decision Date | 16 February 1955 |
| Docket Number | No. 34241,34241 |
| Citation | 124 N.E.2d 411,162 Ohio St. 559,55 O.O. 440 |
| Parties | , 55 O.O. 440 The STATE ex rel. RHODES, Aud., et al., v. SOLETHER, Judge. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. The function of the extraordinary remedy of prohibition is to prevent inferior courts and tribunals from usurping jurisdiction beyond that with which they are vested by law, and a writ of prohibition will be awarded only if there is no adequate remedy in the ordinary course of the law and will not be awarded as a substitute for an appeal.
2. A defendant in an action, who at the first opportunity appears only for the purpose of objecting to the jurisdiction of the court either as to subject matter or person, is not, upon the overruling of such objection, bound to rely solely upon his exception thereto but may make a full defense in the action without waiving his objection as to jurisdiction, either in the trial court, the Court of Appeals, or the Supreme Court.
In Prohibition.
This case originated in this court.
On November 29, 1954, James A. Rhodes, Auditor of State, Roger W. Tracy, Treasurer of State, and Herbert D. Defenbacher, Direcotr of Finance, hereinafter designated Director of Finance, hereinafter designated against Earl K. Solether, Judge of the Court of Common Pleas of Wood County, hereinafter designated respondent.
In their petition relators allege that on January 27, 1954, an action in which they were named as defendants was instituted in the Court of Common Pleas of Wood County, being case No. 33125 on the docket of that court; that on February 27, 1954, relators filed in such case a motion to quash service of summons as to them; that on October 11, 1954, respondent issued an opinion stating that he had decided to overrule such motion to quash service of summons and that the Court of Common Pleas of Wood County is authorized to hear such case against the relators; that on October 29, 1954, respondent, pursuant to such opinion, signed an entry on the journal of the Court of Common Pleas of Wood County overruling the motion to quash such service of summons; that, by virtue of Section 2307.35, Revised Code, and the decisions of the Supreme Court interpreting such section, the Court of Common Pleas of Wood County is wholly without jurisdiction and authority to hear and determine such case; that respondent threatens to proceed and will proceed to hear and determine such case unless he is prohibited from doing so by order of this court; and that relators have no adequate remedy at law whereby they may contest the jurisdiction of the Court of Common Pleas.
Relators pray that a writ issue from this court prohibiting respondent from hearing or determining case No. 33125, and that a temporary injunction be issued restraining respondent from proceeding in that case pending final action of this court herein, and for such other and further orders in the premises as the nature of this case may require.
Respondent filed a demurrer to the petition, upon the ground that it does not state facts which show a cause of action.
C. William O'Neill, Atty. Gen., and Joseph S. Gill, Columbus, for relators.
Robert A. Fries, Pros. Atty., Bowling Green, and Milton L. Farber, Columbus, for respondent.
The only question with which we are faced is whether the petition in this case is demurrable.
The Court of Common Pleas case is an action instituted in that court by the Prosecuting Attorney of Wood County under favor of Section 309.12, Revised Code, Section 2921, General Code.
The petition in that action alleges that certain county officers of Wood County have illegally paid and will continue to illegally pay county funds to certain state officers, and that such state officers have illegally demanded and accepted and will continue to illegally demand and accept such funds, although they have in their possession a large sum of money belonging to Wood County and have refused to repay such amount or credit it to the account of Wood County.
In that case the relators, as well as the Treasurer of Wood County, the Clerk of the Court of Common Pleas of Wood County, and the Auditor of Wood County, were joined as defendants, and a temporary injunction is asked enjoining relators from collecting or attempting to collect any funds due or claimed to be due the state from Wood County or from withholding any sum now due or to become due Wood County from the state, and enjoining the defendant officers of Wood County from paying to relators any sum of money now due or to become due Wood County from the state. It is asked further that upon final hearing such injunction be extended until the money in the treasury of the state and the credits due Wood County as alleged in the petition be properly applied, and that the relators be required to make an accounting of all funds in the treasury of the state and of all money collected by the state as overpayments in the matters described in the petition. Such other and further relief as is equitable is also prayed.
Relators contend that respondent was in error in overruling their motion to quash service of summons in the Wood County case for the reason that under Section 2307.35, Revised Code, Section 11271, General Code, an action against them as public officers can be instituted only in Franklin County, and rely upon the case of Meeker v. Scudder, 108 Ohio St. 423, 140 N.E. 627.
Respondent contends that the Meeker case is not applicable for the reason that under Section 2307.35, Revised Code, the action in Wood County concerns matters that arose therein; that the relators were joined as defendants with officials of Wood County; and that the Court of Common Pleas of Wood County has jurisdiction of both the subject matter of the action there and the persons of the relators, they having been personally served in Franklin County.
Relators counter the claims of respondent by asserting that the Wood County officers at best are only prospective garnishees and are merely incidental parties in the Wood County case; and that relators have no other remedy than a writ of prohibition by which they can test the jurisdiction of the Wood County court over them, for the reason that it is questionable whether a question of venue can be saved where a defense is offered on the merits, or whether an appeal can be made under the new appellate procedure without entering a general appearance in the Wood County court.
In view of the conclusion at which we have arrived, it is unnecessary for us to consider in the present case whether respondent was right or in error in overruling relators' motion to quash service of summons upon them in the Wood County action.
In a long line of cases this court has consistently held that the function of the extraordinary remedy of prohibition is to prevent inferior courts and tribunals from usurping jurisdiction beyond that with which they are invested by law, and that a writ of prohibition will be awarded only if there is no adequate remedy in...
To continue reading
Request your trial
-
State ex rel. Utility Workers Union of America, AFL-CIO Local 349 v. Macelwane
...ground that the relator would not be irreparably harmed by waiting to pursue the remedy of appeal, citing State, ex rel. Rhodes v. Solether, Judge, 162 Ohio St. 559, 124 N.E.2d 411. See, also, State, ex rel. Estes v. Marriott, Judge, 170 Ohio St. 46, 162 N.E.2d 124; Terrett v. Court of Appe......
-
Mayer v. Sumergrade
...to direct a verdict in his favor.' See, also, Gibson v. Construction Co., 163 Ohio St. 220, 126 N.E.2d 326; and State ex rel. Rhodes v. Solether, 162 Ohio St. 559, 124 N.E.2d 411. This principle of law is supported by the overwhelming weight of authority. To cite but a few of the many autho......
-
Eva Lucas v. Bernard Eric Green
... ... juvenile court in this multi-state child custody and support ... action. We vacate the judgment of ... see also State ex rel. Ballard v. O'Donnell ... (1990), 50 Ohio St.3d 182, 183. The ... Nash v. Rhodes (Dec. 16, 1993), Cuyahoga App. No. 64428, ... unreported at p. 11 ... jurisdictional defense. State ex rel. Rhodes v ... Solether (1955), 162 Ohio St. 559, syllabus paragraph ... two, specifically ... ...
-
State ex rel. Hardesty v. Williamson, 82-1781
...309 N.E.2d 926 ; State ex rel. Toerner v. Common Pleas Court (1971), 28 Ohio St.2d 213, 277 N.E.2d 209 ; State ex rel. Rhodes v. Solether (1955), 162 Ohio St. 559, 124 N.E.2d 411 Appellant not only possessed an adequate remedy at law by way of appeal, but he pursued that remedy and received......