Opinion
No. 68-115
Decided July 17, 1968.
Mandamus — To require probate judge and referee to produce transcript — Writ not available to grant relator second appeal.
IN MANDAMUS.
In this action in mandamus originating in this court relator seeks to compel respondent judges and the referee of the Probate Court and the court reporter to produce and make available to relator either the original or a duplicate copy of an allegedly lost transcript of proceedings before the court referee. In those proceedings, the court referee had recommended that the Probate Court find against relator, and the judgment of that court had so found. A motion had been presented in the Probate Court to compel that court to locate the transcript or provide relator with a duplicate copy so that she might prepare a bill of exceptions.
That motion had been overruled on the basis of delay on the part of relator. Relator had appealed to the Court of Appeals and again in that court relator had filed a motion seeking to compel production of the transcript. That motion had been overruled and the appeal dismissed.
A demurrer was filed to the petition in mandamus in the instant case.
Mr. William L. Blake, for relator.
Mr. H.E. Lubeshkoff and Mr. Elmer Schwartz, for respondents.
Relator filed his motion in the Probate Court, apparently relying on the authority of Section 2729.01, Revised Code, which states:
"When the records, dockets, journals, and files, or any part thereof, of any Probate Court have been lost * * * upon the application of a party interested * * * the [Probate] Court may order the restoration of any * * * record of any proceeding or document required to be recorded or filed * * *."
Thus, the Probate Court had power to grant such motion. The question of whether the motion should be granted was decided by the Probate Court adversely to relator. Its judgment was affirmed. The matter is now res judicata. The writ of mandamus will not lie to grant relator another appeal from that decision. See State, ex rel. Luckhaupt, v. McClelland (1949), 151 Ohio St. 17, 84 N.E.2d 275.
The demurrer to the petition is sustained and a writ of mandamus is denied.
Writ denied.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.