Opinion
Nos. 27985 and 27986
Decided April 10, 1940.
Mandamus — Pending action between same litigants involving same subject-matter — Bars mandamus proceeding in another court, when — Requiring conservancy district to execute orders of conservancy court.
Where a prior action is pending between the same litigants, involving the same subject-matter, in a court having jurisdiction, a mandamus proceeding in another court is barred, unless it is plain that adequate relief is not obtainable in the prior case.
APPEALS from the Court of Appeals of Guernsey county.
The Akron Coal Company and The Kimbolton Milling Company, as relators, filed separate and original actions in the Court of Appeals of Guernsey county against the Board of Directors of the Muskingum Watershed Conservancy District and its members as such directors, as respondents, praying for writs of mandamus to require the respondents to bring proceedings to condemn the relators' real property in Guernsey county as ordered by the Muskingum Watershed Conservancy District Court. The writs were allowed, and thereupon appeals as of right from the judgments rendered were perfected by the respondents to this court.
The record shows the following undisputed facts:
1. The Muskingum Watershed Conservancy District is a body corporate and a political subdivision of the state of Ohio, established under the "Conservancy Act of Ohio" (Sections 6828-1 to 6828-79, General. Code) for the purposes of water conservation and flood and stream flow control in the valley of the Muskingum river and its tributaries.
2. Under the official plan adopted by the conservancy district, the appropriation of the lands of the relators within the district was found necessary to the project. Such lands were appraised and appeals taken by the owners from the appraisal awards as finally made. Upon demand, the Conservancy Court, composed of a judge of the Court of Common Pleas of each county in the district, ordered the district to begin condemnation proceedings as provided by Section 6828-34, General Code.
3. No application or request was presented to the conservancy court to enforce such order prior to the commencement of the mandamus actions in the Court of Appeals.
Mr. John Charles Sheppard, Mr. Jesse J. Fazekas and Messrs. Scott Scott, for appellees.
Messrs. Fisher, Limbach, Smith Renner, for appellants.
Relators contend that under Section 6, Article IV of the Ohio Constitution, giving Courts of Appeals original jurisdiction in mandamus, and under Sections 6828-70 and 12284, General Code, the Court of Appeals of Guernsey county was authorized to entertain these actions and to issue the writs.
Section 6828-70, General Code, is a special statutory grant of power to conservancy districts to enforce certain of their orders by the extraordinary writ of mandamus ( State, ex rel. Miami Conservancy Dist., v. Baden, 130 Ohio St. 251, 198 N.E. 865), and Section 12284, General Code, simply authorizes the issuance of the writ of mandamus by the Supreme Court, the Court of Appeals or the Common Pleas Court.
The respondents contend that the Court of Appeals lacked authority to act in the present cases, the matter being wholly within the jurisdiction of the Conservancy Court, which possessed the right and power to enforce its own orders. Wind v. State, 102 Ohio St. 62, 64, 130 N.E. 35, 36. They further contend that a mandamus action against the Conservancy Court, in the event of its failure or refusal to enforce its order upon the filing of contempt charges against the conservancy district, would be the only proper mode of procedure.
A mandamus action in a higher court to compel the judge of an inferior court to exercise jurisdiction in litigation before such court is familiar to the law, but here we have direct actions against litigants to compel them to comply with the order of a court still having jurisdiction of the dispute, with full power to act and to which no application has been addressed to command obedience to its order — an unusual proceeding, to say the least.
While the problem is not free from difficulty, we are brought to the conclusion that this particular situation falls within the generally accepted rule that where it appears that a prior action is pending between the same litigants, involving the same subject-matter, in a court having jurisdiction, a mandamus proceeding in another court is barred, unless it is plain that adequate relief is not obtainable in the prior case. 38 Corpus Juris, 572, Section 45; Abiaca Drainage District v. Albert Theis Sons, Inc., 185 Miss. 110, 112, 187 So. 200, 201; State, ex rel. Wahl, v. Speer et al., Judges, 284 Mo., 45, 223 S.W. 655. Compare, State, ex rel. Commercial Investors Corp., v. Zangerle, County Aud., 126 Ohio St. 247, 185 N.E. 69.
Wherefore, the judgments of the Courts of Appeals are reversed and the cases remanded to that court with instructions to dismiss the same.
Judgments reversed.
WEYGANDT, C.J., DAY, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.