Opinion
No. 30336
Decided October 24, 1945.
Mandamus — Writ not issued where remedy at law adequate — Election contest — Motion for leave to appeal overruled by Supreme Court — Mandamus or procedendo not instrumentality for review.
IN MANDAMUS.
Relatrix prays this court for a writ of mandamus to compel the respondent, Court of Common Pleas of Lawrence county, to assume jurisdiction to hear and determine on the merits the issues made by the pleadings in an election contest case instituted in that court.
The present proceeding in mandamus was submitted on the petition, answer and an agreed statement of facts. The facts hereinafter recited are set forth in either the pleadings, exhibits or agreed statement of facts filed in this court.
The relatrix, as plaintiff-contestor, filed in the Court of Common Pleas of Lawrence county a contest of election for the office of county treasurer, the contestee filed an answer and the contestor filed a reply. Thereafter the contestee filed a motion to dismiss that action, the "cause was submitted to the court [of Common Pleas] only on said motion and the evidence on said motion and not on the other pleadings," and "no evidence was heard on the issues made by the petition, the answer and the reply filed by the parties."
Upon the final submission of the motion to dismiss, the court, at the request of contestor, made separate findings of law and fact in which the court found that the petition of the contestor was not filed within ten days after the results of the recount had been ascertained and announced, "that the provisions of Section 4785-167, General Code, relating to the time within which a petition for contest shall be filed are mandatory, and must be strictly observed, and that such provisions determine the jurisdiction of the court." The Court of Common Pleas sustained the motion to dismiss the petition.
Contestor filed a notice of appeal to the Supreme Court and thereafter filed a motion for leave to appeal to this court, which motion was overruled and an application for rehearing denied.
Messrs. Pratt Crowe, for relatrix.
Mr. John P. Phillips, Jr., for respondent.
Counsel have stipulated and agreed that this court overruled a motion for leave to appeal from the findings and orders of the Court of Common Pleas dismissing the petition of the present relatrix as contestor in an election contest proceeding.
Counsel for relatrix in this mandamus action urge grounds for a writ to compel the Court of Common Pleas to hear the issues on the merits in the former case in addition to those grounds urged in the proceeding on motion for leave to appeal. With the exception of the contention that the appeal on leave to this court authorized by Section 4785-172, General Code, does not provide an adequate remedy at law and therefore mandamus lies, all the additional grounds now asserted could have been presented in the former proceeding on motion for leave to appeal.
An adequate remedy at law is provided by that section.
The extraordinary writ of mandamus may not be invoked to review or relitigate the remaining grounds now pressed on behalf of the relatrix. Gannon v. Gallagher, Dir., 145 Ohio St. 170, 60 N.E.2d 666.
A proceeding in mandamus or in procedendo may not be made the instrumentality for review. State, ex rel. Barner, v. Marsh, Clerk, 120 Ohio St. 222, 165 N.E. 843.
Writ denied.
WEYGANDT, C.J., ZIMMERMAN, BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.