State ex rel. Soley v. Dorrell, s. 93-2182

Decision Date29 June 1994
Docket NumberNos. 93-2182,93-2192,s. 93-2182
Citation634 N.E.2d 215,69 Ohio St.3d 514
PartiesThe STATE ex rel. SOLEY, Appellant, v. DORRELL, Judge, Appellee.
CourtOhio Supreme Court

Page 514

69 Ohio St.3d 514
634 N.E.2d 215
The STATE ex rel. SOLEY, Appellant,
v.
DORRELL, Judge, Appellee.
Nos. 93-2182, 93-2192.
Supreme Court of Ohio.
Submitted March 29, 1994.
Decided June 29, 1994.

On August 2, 1993, appellant, R. Stephen Soley, filed a complaint seeking writs of prohibition and mandamus in the Court of Appeals for Lucas County. Appellant stated, and appellee, Judge Robert Dorrell, admitted in his answer, that appellant is the defendant in a divorce action pending before appellee; that appellant claims that he and the plaintiff in that case, Elizabeth Soley, are first cousins "by blood" and that appellant filed a pro se answer, an unspecified motion, and a motion to dismiss in the divorce action with evidence that he and Elizabeth are first cousins.

Appellant requested a writ prohibiting appellee from exercising further jurisdiction in the divorce case and another compelling appellee to vacate orders previously issued in the case. On September 2, 1993, the court of [634 N.E.2d 216] appeals denied the writs, holding that appellant had failed to establish a right to have the marriage declared void ab initio and implying that appeal was an adequate

Page 515

remedy at law. On September 13, 1993, appellant filed a Civ.R. 60(B)(1) motion for relief from judgment, attaching his documentary evidence that he and Elizabeth are first cousins and claiming that his failure to do so before was "inadvertence." On September 30, 1993, the court of appeals denied the motion, stating that appellant "failed to support by authority his proposition that a marriage between first cousins is void ab initio " and that he "failed to show that he did not have an adequate remedy at law because he failed to allege any damage to him not addressable by an action for money damages."

On October 1, 1993, appellant appealed the September 2 decision (case No. 93-2182); on October 4, he appealed the September 30 decision (case No. 93-2192). On December 15, 1993, this court consolidated the two appeals.

On December 1, 1993, appellant filed his merit brief. On December 23, 1993, appellee filed a Civ.R. 12(B)(6) motion to dismiss for failure to state a claim on which relief can be granted. On January 3, 1994, appellant filed a memorandum contra and motion to strike the motion to dismiss. Appellee has filed no merit brief.

The cause is now before this court upon an appeal as of right.

Crandall, Pheils & Wisniewski and David R. Pheils, Jr., Perrysburg, for...

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10 cases
  • State ex rel. Williams Ford Sales, Inc. v. Connor
    • United States
    • Ohio Supreme Court
    • 26 d3 Abril d3 1995
    ...since this is a timely filed appeal as of right, the board's dismissal motion is inappropriate. See State ex rel. Soley v. Dorrell (1994), 69 Ohio St.3d 514, 515, 634 N.E.2d 215, 216. Therefore, appellant's motion to strike the board's dismissal motion is granted. However, the board's memor......
  • State ex rel. Enyart v. O'Neill
    • United States
    • Ohio Supreme Court
    • 5 d3 Abril d3 1995
    ...1993 WL 177589. Prohibition does not lie to prevent a merely erroneous decision by the court. State ex rel. Soley v. Dorrell (1994), 69 Ohio St.3d 514, 516, 634 N.E.2d 215, 216. In that Judge O'Neill possessed jurisdiction to rule on the Civ.R. 60(B) motion, the fact that she may have exerc......
  • Lupo v. City of Columbus, 13AP-1063
    • United States
    • Ohio Court of Appeals
    • 26 d4 Junho d4 2014
    ...has failed to state a claim upon which relief can be granted. "[S]uch a motion has no place in an appeal." State ex rel. Soley v. Dorrell, 69 Ohio St.3d 514, 515 (1994). Appellate proceedings do not commence with a claim, so an appellant's failure to state a claim is not a basis for dismiss......
  • Ramsey v. Neiman
    • United States
    • Ohio Supreme Court
    • 29 d3 Junho d3 1994
    ... ...      "A personal representative appointed in this state, with the consent of the court making the appointment * * ... ...
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