Opinion
No. 89-1656
Submitted January 9, 1990 —
Decided April 18, 1990.
Prohibition — Writ of prohibition to prevent enforcement of a writ of restitution in a forcible entry and detainer action denied, when.
APPEAL from the Court of Appeals for Cuyahoga County, No. 58143.
Appellant, Marie E. Cully, sought an alternative writ of prohibition and a writ of prohibition in the court of appeals to prohibit appellee, Michael Flanagan, a bailiff of the Cleveland Municipal Court, from evicting her from her residence in Cleveland, Ohio.
Her complaint alleged that she was a defendant and counterclaimant in a forcible entry and detainer action that had been filed by her landlord in the Cleveland Municipal Court and that the court had granted the landlord's motion for summary judgment and ordered her to vacate the premises.
She appealed the decision of the municipal court to the Court of Appeals for Cuyahoga County, but the court of appeals dismissed the appeal because there had been no final appealable order issued, as the municipal court had not yet ruled on her counterclaim. This court overruled her motion to certify the record in (1989), 45 Ohio St.3d 704, 543 N.E.2d 810.
Cully was personally served with an eviction notice and the writ of restitution upon which the notice was based on July 24, 1989. She filed this prohibition action in the court of appeals on July 25, 1989. The court of appeals dismissed the action sua sponte on July 26, 1989 for failure to state a claim upon which relief could be granted. Cully states that she was evicted from her residence on July 27, 1989.
The cause is before this court as a matter of right.
Marie E. Cully, pro se. Nick Tomino, director of law, and Sheryl King-Benford, for appellee.
Cully contended in her complaint that Flanagan had no jurisdiction or authority to proceed with the eviction prior to the adjudication of plaintiff's counterclaim by the trial court, and that she had no adequate remedy at law because she could not appeal her eviction in the forcible entry and detainer case as there was no final appealable order. An action in prohibition will lie only if three conditions are met. These conditions are:
"* * * (1) The court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power; (2) the exercise of such power must be unauthorized by law; and (3) it must appear that the refusal of the writ would result in injury for which there is no other adequate remedy in the ordinary course of the law. * * *" State, ex rel. McKee, v. Cooper (1974), 40 Ohio St.2d 65, 69 O.O. 2d 396, 320 N.E.2d 286, paragraph one of the syllabus.
Based on the decisions in two analogous cases, the court of appeals found that the first condition for an action in prohibition was not met because Flanagan's enforcement of the writ of restitution in the forcible entry and detainer action was only a ministerial act, not a judicial or quasi-judicial act. See State, ex rel. Moss, v. Clair (1947), 148 Ohio St. 642, 36 O.O. 258, 76 N.E.2d 883, and Waxler v. Smith (1953), 96 Ohio App. 261, 54 O.O. 288, 121 N.E.2d 655.
We agree with the court of appeals that the bailiff's enforcement of a writ of restitution in the forcible entry and detainer action was not an exercise of judicial or quasi-judicial power. Moreover, Cully may still appeal her eviction in the underlying case. We deem this an adequate remedy at law.
Therefore, we hold that the court of appeals appropriately dismissed the complaint because it appears beyond doubt from the complaint that Flanagan, as bailiff, was not performing a judicial or quasi-judicial act. Accordingly, the judgment of the court of appeals is affirmed.
Judgment affirmed.
MOYER, C.J., SWEENEY, HOLMES, WRIGHT, H. BROWN and RESNICK, JJ., concur.
DOUGLAS, J., concurs in judgment only.