State ex rel. Stefanick v. Municipal Court of Marietta, 69-560

• Decision Date: 18 February 1970
• Docket Number: No. 69-560,69-560
• Citation: 255 N.E.2d 634,50 O.O.2d 265,21 Ohio St.2d 102
• Parties: , 50 O.O.2d 265 The STATE, ex rel. STEFANICK, Appellant, v. MUNICIPAL COURT OF MARIETTA et al., Appellees.
• Court: Ohio Supreme Court

Page 102

21 Ohio St.2d 102

255 N.E.2d 634, 50 O.O.2d 265

The STATE, ex rel. STEFANICK, Appellant, v. MUNICIPAL COURT OF MARIETTA et al., Appellees.

No. 69-560.

Supreme Court of Ohio.

Feb. 18, 1970.

On August 19, 1968, a petition in forcible entry and detainer, with a claim for past due rent, was filed against the appellant in the Marietta Municipal Court. On October 28, 1968, a trial was held, with the plaintiff being granted a judgment of $590 for past due rent, together with a writ of possession. The judgment was journalized on October 29, 1968, and execution was immediately issued to the bailiff of the Marietta Municipal Court. On October 30, 1968, the bailiff attempted to levy upon the appellant's automobile and his efforts in that regard were, allegedly, physically resisted by the appellant. In response to appellant's alleged actions, the bailiff filed an affidavit charging her with unlawfully obstructing him in the execution of a lawful order of levy, in violation of Section 2917.33, Revised Code.

The appellant filed an amended petition for a writ of prohibition in the Court of Appeals for Washington County, seeking an order prohibiting the appellees from issuing another levy in aid of execution on the civil judgment entered in the Marietta Municipal Court on October 29, 1968, and an order prohibiting the proceedings in the criminal case in which she is named as the defendant. The Court of Appeals, by journal entry on July 9, 1969, held that appellant's petition for prohibition did not state a cause of action and that a plain and adequate remedy at law was available by way of appeal.

The petition was dismissed and an appeal was timely filed with this court.

Jerry Gordon, Cleveland, for appellant.

Paul G. Bertram, Jr., City Solicitor, for appellees.

PER CURIAM.

The appellant recites numerous errors alleged to have been committed by the appellees during the course of the civil suit which gave rise to the attempted levy. It is argues that these errors were of constitutional dimensions and were sufficient to deprive the Municipal Court of jurisdiction to hear the civil suit, to enter a judgment against the appellant and to enter an order of levy to the bailiff.

The validity of appellant's allegations of error in the civil suit need not be examined in the case at bar. Even if it is assumed that there was error committed which deprived the Municipal Court of jurisdiction in the civil suit, the sole question presented in this case is whether a writ of prohibition may issue to prohibit execution on the civil judgment and to prohibit and restrain the criminal prosecution of the appellant.

Appellant is charged with violating Section 2917.33, Revised Code, which provides, in part:

'No person shall * * * knowingly and willfully resist, obstruct, or abuse a sheriff, or other officer in the execution of his office.'

It is well settled that if a court is without subject matter jurisdiction it has no power to enforce an order or decree rendered by it, and punishment in contempt may not be imposed for a violation of that order or decree. See In re Petition of Green (1962), 369 U.S. 689, 82 S.Ct. 1114, 8 L.Ed.2d 198; United States v. United Mine Workers (1947), 330 U.S. 258, 67 S.Ct. 677, 91 L.Ed. 884; In re Cattell (1945), 146 Ohio St. 112, 64 N.E.2d 416, 164 A.L.R. 312; State, ex rel. Beil, v. Dota (1958), 168 Ohio St. 315, 154 N.E.2d 634, certiorari denied (1959), 360 U.S. 912, 79 S.Ct. 1298, 3 L.Ed.2d 1261. If appellant were charged with contempt for disobeying a court order or decree, and the court had lacked jurisdiction to issue that order to her, then prohibitiion could be proper to restrain the imposition of punishment for that disobedience. In this case, however, the order of levy was issued to the bailiff, not to the appellant. Moreover, appellant is charged with violating a specific statute, not with contempt of a direct court order.

If an act in violation of Section 2917.33, Revised Code, is committed within the territorial limits of a Municipal Court, that court has jurisdiction of the violation. Sections 1901.20 and 2931.04, Revised Code. Nothing in the record of this case indicates that the Marietta Municipal Court lacks jurisdiction to act in a matter involving an alleged violation of Section 2917.33, Revised Code. A writ of...