State ex rel. Tempero v. Colopy

• Decision Date: 14 February 1962
• Docket Number: No. 37228,37228
• Citation: 180 N.E.2d 273,173 Ohio St. 122
• Parties: , 18 O.O.2d 366 The STATE ex rel. TEMPERO, Appellee, v. COLOPY et al., Judges; Moreland, Appellant.
• Court: Ohio Supreme Court

Page 122

173 Ohio St. 122

180 N.E.2d 273, 18 O.O.2d 366

The STATE ex rel. TEMPERO, Appellee, v. COLOPY et al., Judges; Moreland, Appellant.

No. 37228.

Supreme Court of Ohio.

Feb. 14, 1962.

Syllabus by the Court

1. A court has no jurisdiction to render a personal judgment against a defendant where such defendant has not appeared generally and that court has not otherwise acquired jurisdiction over his person.

2. A writ of prohibition may be issued to prevent an inferior tribunal from exercising jurisdiction which it does not possess.

3. The judgment of a Court of Appeals, granting a writ of prohibition, will not be reversed merely because the relator has an adequate remedy in the ordinary course of the law.

Respondent Moreland has pending in the Court of Common Pleas an action against the relator.

Relator filed a petition in the Court of Appeals asking for a writ of prohibition against the judges of the Court of Common Pleas. That petition alleges in part:

'5. The defendant-judges * * * have assigned said action [the aforementioned action in the Court of Common Pleas] for trial * * * and will proceed to entertain jurisdiction of and hear and determine said action and render judgment therein * * *.

'6. No summons or other process has ever been served upon this * * * relator and the * * * relator has never entered any appearance in said action.'

The Court of Appeals rendered a judgment granting a writ of prohibition. Its journal entry states in part:

'Upon consideration of the pleadings [petition, demurrer thereto and answer] and the evidence, the court finds that the Common Pleas Court * * * has not acquired any jurisdiction of the relator * * *.' (Emphasis added.)

The cause is now before this court on appeal from that judgment.

Johnstone, Conn., Sanders & Church, Akron, for appellant.

Olds & Olds, Akron, for appellee.

TAFT, Judge.

Since there is no bill of exceptions, this court does not know what evidence was presented to the Court of Appeals. Hence, the only question before this court is whether the petition states a cause of action. See State ex rel. Moffitt v. Zupnik (1943), 142 Ohio St. 232, 51 N.E.2d 661; Viering v. Scott (1949), 152 Ohio St. 211, 88 N.E.2d 921; Marriott v. Hawk (1924), 111 Ohio St. 285, 145 N.E. 287.

A court has no jurisdiction to render a personal judgment against a defendant (such as is sought by respondent Moreland against relator in the aforementioned action in the Common Pleas Court) where such defendant has not appeared generally and that court has not otherwise acquired jurisdiction over his person.

A writ of prohibition may be issued to prevent an inferior tribunal from exercising jurisdiction which it does not possess. State ex rel. Jaster, Dir. of Highways v. Court of Common Pleas (1936), 132 Ohio St. 93, 5 N.E.2d 174.

However, it is contended that relator has an adequate remedy in the ordinary course of the law, and that, therefore, the Court of Appeals should have refused to allow the writ. We believe it unnecessary to decide in the instant case whether relator has such a remedy.

This court in the exercise of its discretion will usually refuse to allow a writ of prohibition or of mandamus where the relator has an adequate remedy in the ordinary course of the law. However, it has the power to, and may in the exercise of its discretion, issue such a writ in such an instance. State ex rel. Wesselman v. Board of Elections (1959), 170 Ohio St. 30, 162 N.E.2d 118. See State ex rel. Libby-Owens-Ford Glass Co. v. Industrial Commission (1954), 162 Ohio St. 302, 123 N.E.2d 23.

A Court of Appeals has this same discretion. State ex rel. Wesselman v. Board of Elections, supra, 170 Ohio St. 30, 162 N.E.2d 118. Therefore, the judgment of a...