Opinion
No. 30083
Decided October 25, 1944.
Mandamus — Writ not issued where action between same parties pending in another court — Workmen's compensation — Appeal to Common Pleas Court — Industrial Commission ordered to open rehearing record.
IN MANDAMUS.
The Industrial Commission denied an application of the relatrix for workmen's compensation for the reason that the proof did not show that her husband's death was the result of an injury in the course of employment. An application for rehearing was duly filed, testimony was presented on rehearing, workmen's compensation was again denied, an appeal was perfected by the widow to the Court of Common Pleas of Cuyahoga county, and an answer was filed by the Industrial Commission, together with a transcript of the rehearing.
The widow subsequently filed with the Industrial Commission a motion to open the rehearing record to permit her to offer further evidence, which motion the commission overruled.
Thereafter the widow filed a motion in the Court of Common Pleas asking that the Industrial Commission be ordered to open the rehearing record to permit her to offer further evidence which was necessary to fairly and justly determine the cause. That court entered an order directing the commission to open the record of the rehearing for the purpose of permitting evidence and testimony to be made a part of the record, but the commission refused to comply with the order and refused to open the record.
The foregoing statement of facts is abstracted from the petition praying for a writ of mandamus commanding the Industrial Commission to open the rehearing record for the purpose hereinbefore stated.
The cause was submitted to this court upon a general demurrer to the petition.
Messrs. Bernsteen Bernsteen and Mr. S.A. Thorman, for relator.
Mr. Thomas J. Herbert, attorney general, and Mr. Robert E. Hall, for respondent.
From the allegations of the petition it is apparent that a writ of mandamus is sought from this court commanding the Industrial Commission to do the same act which the Court of Common Pleas ordered and directed to be done in an action in which the present relatrix was plaintiff and the commission was defendant.
The demurrer to the petition is therefore sustained, a writ of mandamus is denied and the petition is dismissed on authority of State, ex rel. Akron Coal Co., v. Board of Directors of Muskingum Watershed Conservancy District, 136 Ohio St. 485, 26 N.E.2d 766, the syllabus of which case reads:
"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."
See, also, State, ex rel. First National Bank, North Baltimore, v. Village of Botkins, 141 Ohio St. 437, 48 N.E.2d 865, 148 A. L. R., 205; State, ex rel. Brophy, v. City of Cleveland, 141 Ohio St. 518, 49 N.E.2d 175; State, ex rel. Waller, v. Industrial Commission, 143 Ohio St. 475, 55 N.E. (24), 800.
Writ denied and petition dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.