State, ex rel. Utley v. Abruzzo, 84-479

• Decision Date: 05 June 1985
• Docket Number: No. 84-479,84-479
• Citation: 17 OBR 439,17 Ohio St.3d 203,478 N.E.2d 789
• Parties: , 17 O.B.R. 439 The STATE, ex rel. UTLEY, Admr., et al., Appellants, v. ABRUZZO, Judge, Appellee.
• Court: Ohio Supreme Court

Page 203

17 Ohio St.3d 203

478 N.E.2d 789, 17 O.B.R. 439

The STATE, ex rel. UTLEY, Admr., et al., Appellants, v. ABRUZZO, Judge, Appellee.

No. 84-479.

Supreme Court of Ohio.

June 5, 1985.

William F. Clinard, Germantown, for appellants.

Wilfrid G. Dues, Pros. Atty., for appellee.

PER CURIAM.

As was recognized in State ex rel. Davey v. Owen (1937), 133 Ohio St. 96, 106, 12 N.E.2d 144 , "[t]he writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be. * * * " Accord State ex rel. Federated Dept. Stores, Inc. v. Brown (1956), 165 Ohio St. 521, 525, 138 N.E.2d 248 . It is well-settled that the writ of procedendo will not issue for the purpose of controlling or interfering with ordinary court procedure, State ex rel. Cochran v. Quillin (1969), 20 Ohio St.2d 6, 251 N.E.2d 607 , nor will the writ issue where an adequate remedy exists in the ordinary course of the law. State ex rel. St. Sava v. Riley (1973), 36 Ohio St.2d 171, 174, 305 N.E.2d 808 ; State ex rel. Ruggiero v. Common Pleas Court (1963), 175 Ohio St. 361, 194 N.E.2d 850 .

As the court below correctly concluded, not only are appellants seeking to control ordinary court procedure contrary to the prior pronouncements of this court by contesting appellee's bifurcation order through an action in procedendo, but appellants are also attempting to achieve this result despite possessing an adequate remedy at law, by way of direct appeal, at the conclusion of the proceedings whereby the lawfulness of appellee's order may be reviewed. Moreover, it is axiomatic that a direct appeal as of right constitutes a plain and adequate remedy in the ordinary cause of the law, State ex rel. Cleveland v. Calandra (1980), 62 Ohio St.2d 121, 122, 403 N.E.2d 989 , the existence of which is fatal to a request for the extraordinary remedy of procedendo. State ex rel. St. Sava v. Riley, supra.

Appellants, however, seek to circumvent the principles established in the aforementioned cases by relying upon our decision in State ex rel. Unger v. Quinn (1984), 9 Ohio St.3d 190, 459 N.E.2d 866. According to appellants, that case stands for the proposition that procedendo will lie to compel a court to adhere to a specific statutory procedure. An examination of the case reveals that appellants' reliance thereon is misplaced.

The facts in Unger demonstrate that the Court of Common Pleas of Stark County declined to conduct a criminal trial subsequent to the issuance of an indictment charging unfair campaign practices in violation of R.C. 3599.091. Instead, the court transferred the action to the Alliance Municipal Court for prosecution. Acting upon a complaint in procedendo seeking an order compelling the common pleas court to try the case, this court issued the writ, concluding that pursuant to R.C. 3599.091 the court of common pleas...