Opinion
No. 30722
Decided December 18, 1946.
Mandamus — Adequate remedy at law — Writ not issued to compel trial judge sign bill of exceptions — Proffer of testimony on motion to vacate divorce decree — Appeal to Court of Appeals in divorce action — Errors of trial court reviewable by that court on appeal.
APPEAL from the Court of Appeals for Cuyahoga county.
This cause originated in the Court of Appeals by relatrix filing a petition for a writ of mandamus to compel the respondent, as trial judge, to sign "a true bill of exceptions containing the full and complete record of the proceedings" before him on a motion to vacate a divorce decree in a case in which relatrix was defendant and to direct that the bill of exceptions include the entire proffer of proof, in whatever form presented, which was made by the relatrix, as defendant in the divorce action, on and in connection with the hearing on the motion to vacate the decree.
The issues in the mandamus proceeding were joined by the petition of relatrix, the answer of respondent and a stipulation by counsel as to the evidence. Counsel in the mandamus proceeding stipulated and agreed that there should be considered in evidence the transcript of docket and journal entries, the defendant's bill of exceptions and the transcript of the proceedings on objections to the bill of exceptions in the divorce action.
The Court of Appeals refused to issue a writ of mandamus and dismissed the petition, after which the relatrix perfected an appeal to this court as a matter of right.
Further facts are stated in the per curiam opinion.
Messrs. Woodle Wachtel, for appellant.
Messrs. Addams Bayer, for appellee.
The following facts are summarized from the pleadings and stipulation filed in the Court of Appeals.
The relatrix was defendant in a divorce action heard by the respondent, as trial judge, in which action a decree for divorce for the husband was entered. Within three days after the entry thereof the relatrix filed a motion, with an affidavit attached thereto, to vacate that decree. At the hearing on that motion, the respondent, as trial judge, read the affidavit, requested counsel for relatrix to make a statement as to the evidence he expected to introduce and, after counsel for relatrix made such statement, the respondent ruled there was no ground for vacating the decree for divorce. Counsel for relatrix had three persons present, and a fourth person available, to testify as witnesses at the hearing on the motion to vacate the divorce decree, but the respondent, as trial judge, did not permit the introduction of further testimony. Immediately following the hearing in the courtroom of the respondent, the questioning of three of the witnesses took place in the chambers of the respondent, in the absence of the plaintiff in the divorce action and his counsel. The respondent judge saw and observed the questioning of the witnesses in his chambers and the recording of their testimony by the official court reporter.
It is contended by relatrix that the respondent judge arbitrarily excluded from the bill of exceptions a portion of the proceedings which took place at the hearing on the motion by relatrix to vacate the divorce decree, and that as a matter of law the offer of testimony taken in the chambers of the respondent was a part of the proceedings.
The respondent contends that the relatrix has an adequate remedy at law, since the divorce action is pending on appeal the Court of Appeals which can determine whether the respondent as trial judge committed error in refusing to vacate the divorce decree on relatrix's motion, the affidavit attached thereto and the statement of her counsel at the hearing on the motion.
Counsel for relatrix admits in the brief filed in this court that an appeal in the divorce case is pending in the Court of Appeals and that one of the assignments, of error will be the refusal of the respondent to permit the introduction of any testimony on the motion to vacate.
We are of opinion that the judgment of the Court of Appeals in the instant case should be affirmed.
The Court of Appeals has jurisdiction to determine in the appeal pending in the divorce case whether respondent committed error in overruling the motion.
In the event the Court of Appeals finds that the motion, the affidavit in support thereof and the statement of counsel do not state a ground to set aside the decree, it follows that relatrix was not entitled to introduce testimony on such motion.
The relatrix having an adequate remedy at law, the Court of Appeals committed no error in refusing to issue a writ of mandamus.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.