Opinion
No. 36624
Decided March 22, 1961.
Prohibition — Allowance of writ — Discretionary power of Court of Appeals — Divorce and alimony — Court first acquiring jurisdiction entitled to adjudicate all issues — Writ to prevent second court assuming jurisdiction.
APPEAL from the Court of Appeals for Cuyahoga County.
The relator, appellee herein, brought this action in prohibition in the Court of Appeals for Cuyahoga County. In his petition relator alleges that, in June 1959, he filed a petition for divorce in the Court of Common Pleas of Lorain County (herein called Lorain court) and service by publication was completed in August 1959; that on September 5, 1959, his wife brought an action in the respondent court for divorce, custody of minor child, restraining order, alimony and equitable relief, and relator was served on September 9; that relator filed a motion to strike from the files such petition filed by his wife, setting forth the prior invocation of jurisdiction of the Lorain court, and such motion was overruled; and that his wife filed a motion to quash the service of summons in the Lorain court, which motion was overruled, and, on appeal, the Court of Appeals for Lorain County dismissed the appeal on the ground that the ruling on the motion was not a final appealable order.
Relator alleges further that his wife filed, with her petition, a motion for alimony pendente lite; and that the respondent court and Victor Cohen as a judge thereof are wholly without power and authority to hear and determine the motion for alimony or the petition for divorce, custody, restraining order, alimony and equitable relief, and, unless all the judges of the court are prohibited from doing so, they will hear the cause although without jurisdiction or authority to do so.
The prayer of the petition is for a writ permanently prohibiting the respondent court and the judges thereof from proceeding with the hearing of either the petition or the motion for alimony pendente lite or from granting any alimony or other order or judgment.
Respondents filed a demurrer to this petition, on the ground that it does not state facts which show a cause of action.
The court overruled the demurrer and allowed the writ.
An appeal as of right brings the cause to this court for review.
Messrs, Clyne, Kane, Ray Talty and Mr. Dan K. Cook, for appellee.
Mr. John T. Corrigan, prosecuting attorney, and Mr. John L. Dowling, for appellants.
It is alleged in the petition and admitted by the demurrer that the Lorain court was the first to acquire jurisdiction of the subject matter and parties.
"As between courts of concurrent jurisdiction, the one whose power is first invoked by the institution of proper proceedings acquires jurisdiction, to the exclusion of all other tribunals, to adjudicate upon the whole issue and to settle the rights of the parties." John Weenink Sons Co. v. Court of Common Pleas of Cuyahoga County, 150 Ohio St. 349.
The remedy of prohibition is available to restrain a court from exercising jurisdiction where an identical cause of action between the same parties has previously been lodged in another court of concurrent jurisdiction. Miller v. Court of Common Pleas of Cuyahoga County, 143 Ohio St. 68; John Weenink Sons Co. v. Court of Common Pleas of Cuyahoga County, supra.
Appellants contend that the remedy of prohibition may not be used as a substitute for appeal, and that appeal is the proper remedy to determine the question of jurisdiction. This court has held in State, ex rel. Wesselman, v. Board of Elections of Hamilton County, 170 Ohio St. 30, that "a Court of Appeals that allows a writ of mandamus to a relator does not thereby abuse its discretion merely because such relator also has an adequate remedy in the ordinary course of the law." The same rule applies to a writ of prohibition.
The Court of Appeals has the same discretionary power with respect to the allowance of an extraordinary writ as this court, and this court is reluctant to interfere with the exercise by that court of its discretionary power. State, ex rel. Lorain County Savings Trust Co., v. Board of County Commissioners of Lorain County, 171 Ohio St. 306.
The Court of Appeals was not in error in allowing the writ, and its judgment is, therefore, affirmed.
Judgment affirmed.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and O'NEILL, JJ., concur.