Opinion
Decided February 19, 1932.
Writ of prohibition — Extraordinary remedy not absolute right except in absence of another remedy — Writ lies against court competent to determine its own jurisdiction, when — Writ denied to party submitting jurisdictional question to court, when — Writ lies when assumed jurisdiction clearly not confided to court, when — Jurisdiction of application to modify judgment after term.
1. The extraordinary remedy of prohibition is not one of absolute right except in the absence of any other remedy.
2. A writ of prohibition should not issue against a court competent to pass upon its own jurisdiction, unless such court is without jurisdiction of the subject-matter of the action or is exceeding its legitimate powers.
3. Where the party asking for a writ of prohibition against a court competent to pass upon its own jurisdiction has submitted to said court the question of jurisdiction, the writ should be denied, although such court has erroneously decided that it has jurisdiction, if the ordinary and usual remedies provided by law, such as appeal or proceedings in error, are adequate and available.
4. If a court competent to pass upon its own jurisdiction decides that it has jurisdiction of a subject which clearly is not confided to it by the fundamental law from which it derives its existence and powers, it should be held that the ordinary and usual remedies provided by law for review are not adequate, and a writ of prohibition should be issued; but if the jurisdiction of the court depends upon facts and circumstances which the court passes upon in determining its jurisdiction, it should be held that the ordinary and usual remedies provided by law for review are adequate, and a writ of prohibition should not be issued.
IN PROHIBITION.
Messrs. Rockwell, Grant, Thomas Buckingham, for plaintiff. Messrs. Schnee, Grimm Belden, for defendant.
In this case we are asked to issue a writ of prohibition to prevent defendant, as a judge of the common pleas court, from hearing and deciding matters raised by an application filed in a certain case in that court.
It appears from the petition for a writ of prohibition that on June 6, 1931, the court of common pleas, in an action of which it had jurisdiction of the subject-matter and of the parties, entered a judgment which finally disposed of the issues involved in that case, and that at the next term of said court the application in question was filed by some of the parties to that suit and others; but the petition does not set forth what that application is.
However, the petition does set forth that the common pleas court will entertain said application and "will unlawfully modify or vacate the order and decree of the former term, to wit, of June 6, 1931." The petition also sets forth that the parties who are seeking said writ of prohibition filed a motion in said common pleas court asking that court to dismiss said application on the ground that that court had no jurisdiction to hear and entertain the same, and that upon the hearing of the motion the court determined that it had jurisdiction and set a day for the hearing of the application.
It therefore appears from said petition for a writ of prohibition that said application involves the modification or vacation of the judgment or decree of June 6, 1931, and that said application was filed at the first term subsequent to the entering of said order or judgment of June 6, 1931.
We are unable to say that the common pleas court does not have jurisdiction of the subject-matter involved in the application. We know that the common pleas court does have jurisdiction of the subject-matter of the modification and vacation of its judgments after the term at which they are rendered, and for aught that appears such jurisdiction has been properly invoked; and it is also settled that if the court has jurisdiction of the subject-matter involved in the controversy, and such jurisdiction has been properly invoked, a writ of prohibition should not issue to prohibit it from exercising such jurisdiction.
As applied to courts having power to pass upon their own jurisdiction, the writ of prohibition may be issued only when the court is without jurisdiction of the subject-matter, or such jurisdiction has not been properly invoked, and even then it should not be issued, except under exceptional circumstances, if the question of jurisdiction has been submitted to and determined by the court against which the writ of prohibition is sought, for in such case the complainant usually has a full and adequate remedy at law. State, ex rel. Emery-Thompson Machinery Supply Co., v. Jones, 96 Ohio St. 506, at page 511, 118 N.E. 115.
If it is claimed that a court does not have jurisdiction of a particular case or matter which is embraced within the subject-matter of its general jurisdiction, the only way in which such claim may be determined is by submitting such question to the court, and if the judgment is claimed to be erroneous, prosecuting error or appeal.
"Like all other extraordinary remedies, prohibition is to be resorted to only in cases where the usual and ordinary forms of remedy are insufficient to afford redress. And it is a principle of universal application, and one which lies at the very foundation of the law of prohibition, that the jurisdiction is strictly confined to cases where no other remedy exists, and it is always a sufficient reason for withholding the writ that the party aggrieved has another and complete remedy at law." High's Extraordinary Legal Remedies (2d Ed.), Section 770, page 610. See, also, Kelley, Judge, v. State, ex rel. Gellner, 94 Ohio St. 331, 114 N.E. 255; State, ex rel. Barbee, Exr., v. Allen, Probate Judge, 96 Ohio St. 10, 117 N.E. 13; State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430; In re Rice, 155 U.S. 396, 15 S. Ct., 149, 39 L. Ed., 198; Ex parte Williams, 4 Ark. 537, 38 Am. Dec., 46.
The general classes of subjects over which a court may exercise jurisdiction when such jurisdiction is properly invoked are found in the fundamental law from which the court derives its existence and powers. If the invoking of such jurisdiction depends upon facts and circumstances which the court must pass upon to determine whether or not it has jurisdiction, its decision in reference thereto is binding upon the parties, unless and until set aside upon appeal, or by some other proceeding for that purpose; and its decision in reference thereto, whether erroneous or not, cannot be questioned or controlled by a writ of prohibition.
In the case at bar, the subject-matter of the application is the modification or vacation, at a subsequent term, of a judgment or decree of the common pleas court, and that court has determined that it has jurisdiction to hear and determine such application; and as it appears that error proceedings afford an adequate remedy for a mistake of the court in making such determination, or in the manner in which it exercises its authority in disposing of said application, a writ of prohibition should not issue.
The writ will therefore be denied and the petition dismissed.
Writ denied.
PARDEE, P.J., and FUNK, J., concur.