Opinion
No. 31485
Decided February 9, 1949.
Prohibition — Writ not available to prevent erroneous judgment or as substitute for appeal — Motion to dismiss appeal on law and fact, reserved for decision — Case proceeded and decided as an appeal on law — Petition for writ of prohibition against journalizing opinion — Right to file bill of exceptions, assignment of errors and brief.
IN PROHIBITION.
The present proceeding in prohibition was instituted in this court.
The following facts are epitomized from the petition. The relator was defendant in an action for temporary support, permanent alimony and attorney fees, instituted in the Court of Common Pleas of Erie county. He cross-petitioned for divorce and as a defense set forth a separation agreement releasing the parties thereto from all obligations of future support. He filed an application for change of venue and the cause was removed to the Court of Common Pleas of Ottawa county. A reply and other pleadings were filed, the cause was heard and that court awarded the plaintiff permanent alimony, denied the defendant a divorce and overruled his motion for new trial. The defendant has been paying alimony since prior to the journalizing of the decree.
The defendant filed a notice of appeal to the Court of Appeals on questions of law and fact. He filed also an appeal bond and thereafter filed a trial brief pertaining to an appeal on questions of law and fact. A bill of exceptions had been filed, not by defendant or his counsel or under the orders of either. The defendant had ordered the court reporter "to prepare a transcript of the evidence" but had not ordered or caused it to be filed as a bill of exceptions.
When the case came on for hearing in the Court of Appeals, the presiding judge stated counsel could proceed by stipulation or by offering evidence. Counsel for plaintiff orally moved that the cause be dismissed as an appeal on questions of law and fact. The presiding judge announced that the motion would be reserved until the court could consider the case. Counsel stipulated and submitted the case on the transcript of the testimony in the trial court. The presiding judge directed the record should show that in the event the motion to dismiss was granted, the case should proceed as an appeal on questions of law only. Thereafter, the Court of Appeals filed an opinion in which the motion to dismiss the appeal on questions of law and fact was sustained, assignments of error were referred to, the case was decided on questions of law and the judgment of the Court of Common Pleas was affirmed. An application for rehearing was denied.
The petition in the present proceeding prays for a writ of prohibition against the respondents journalizing their written opinion and for an order granting relator leave to file a bill of exceptions, an assignment of errors and brief in the appeal on questions of law.
The cause was submitted to this court on the petition, answer, reply and depositions.
Mr. John F. McCrystal and Mr. James L. McCrystal, for relator.
Mr. George W. Slaughter, prosecuting attorney, for respondents.
The foregoing summary of facts is sufficient to demonstrate that relator seeks a writ of prohibition either to prevent an erroneous decision or as a substitute for an appeal.
The writ of prohibition is not an appropriate remedy for the correction of errors and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate. Kelley, Judge, v. State, ex rel. Gellner, 94 Ohio St. 331, 114 N.E. 255; State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430; State, ex rel. Norris, v. Hodapp, Judge, 135 Ohio St. 26, 18 N.E.2d 984.
The extraordinary writ of prohibition is a high prerogative writ which may not be invoked if the remedy of appeal is available. State, ex rel. Levy, v. Savord, 143 Ohio St. 451, 55 N.E.2d 735; 32 Ohio Jurisprudence, 586, Section 24.
For the foregoing reasons a writ of prohibition is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.