Opinion
No. 72-42
Decided May 10, 1972.
Remedies — Procedendo — Mandamus — Not available, when — No clear legal right to relief — Adequate remedy by appeal available — Pleading.
APPEAL from the Court of Appeals for Franklin County.
Relators began a medical malpractice action in 1969 in the Franklin County Common Pleas Court. On June 21, 1971, the case was pretried by respondent, a judge of that court, on relators' second amended petition, filed May 7, 1970, and answers, and trial was set for November 4, 1971.
On October 15, 1971, without leave of court, relators filed a third amended complaint. On October 20, 1971, that complaint was ordered stricken by respondent, and relators' oral motions for leave to file their third amended complaint and for leave to "amend the second amended petition" by increasing the damages sought were overruled.
Relators then filed this action in the Court of Appeals seeking a writ of procedendo requiring respondent to accept relators' third amended complaint for filing or to permit the requested amendment of the demand and prayer of their second amended petition. They argue that the Rules of Civil Procedure, effective July 1, 1970, govern their attempted amendment of pleadings and that, therefore, respondent should have permitted amendment.
Relators' pleading filed in the Court of Appeals is captioned "Petition for Writ of Procedendo." In their memorandum in support thereof, however, relators refer to the action as "precedendo or mandamus" and "submit that the alternative and peremptory writs should issue." In its entry, the Court of Appeals denied the "writ of procedendo prayed for in the petition herein." Relators' notice of appeal to this court refers to their "petition for writ of procedendo and/or mandamus," and in their brief they allude to both writs.
By leave of court, defendant in the Common Pleas Court action was permitted to intervene in the Court of Appeals.
The Court of Appeals denied the writ, and an appeal of right brings the cause here for review.
Messrs. Ahern, Butler, Cincione Dicuccio and Mr. William J. Ahern, for appellants.
Mr. George C. Smith, prosecuting attorney, and Mr. David H. Bodiker, for appellee.
Messrs. Wright, Harlor, Morris Arnold, Mr. Earl F. Morris and Mr. James E. Pohlman, for intervenor.
Procedendo is a high prerogative writ of an extraordinary nature. It is an order from a court of superior jurisdiction to proceed to judgment and does not lie to control or interfere with ordinary court procedure. Procedendo does not lie where, as here, there is no clear legal right to such relief.
Moreover, even if relators' complaint is considered to be in mandamus, that remedy is not available where there is an adequate remedy in the ordinary course of the law. Here, relators have an adequate remedy by appeal.
The judgment of the Court of Appeals denying the writ sought is affirmed.
Judgment affirmed.
O'NEILL, C.J., SCHNEIDER, HERBERT, CORRIGAN, STERN, LEACH and BROWN, JJ., concur.