Opinion
No. 36122
Decided November 4, 1959.
Prohibition — Writ not available where other adequate remedy — Not substitute for appeal — Criminal proceeding — Objection to jurisdiction.
IN PROHIBITION.
The relator, Estes, by this action instituted in this court, seeks a writ of prohibition to restrain the Mansfield Municipal Court and the judge thereof from proceeding further in a case in that court in which relator was named defendant and charged with disturbing the peace in violation of Section 2923.41, Revised Code.
Relator alleges in his petition that a deputy sheriff filed an affidavit against relator in the Mansfield Municipal Court and appeared at relator's place of business and orally ordered him to appear in court; that relator, entering his appearance solely for the purpose of the motion, filed a motion to quash the issuance, execution and return of any process, for want of jurisdiction of the court since he had not been arrested, no warrant had been served on him, he had not entered into a recognizance, no summons had been served on him and he had not been taken before a committing officer; that such motion was overruled; that thereafter deputy sheriffs informed him that the court had issued a new warrant for his arrest and took him to the county jail where they "extorted from him $50," for which no receipt was given or entry made; that the following morning relator, entering his appearance solely for the purpose of the motion, filed a motion, in which he denied jurisdiction of the court, to quash the issuance, execution and return of process since he had never been arrested, had never been taken before a magistrate or committing officer, had never entered into any recognizance for his appearance in court and had never been notified of the time, place or court in which to appear; that such motion was overruled; that the court also advised that a bond of $50 had been filed and "is now approved"; that thereafter relator, denying jurisdiction of the court and entering his appearance solely for the motion, filed a motion to quash the issuance, execution and return of the warrant for want of definiteness in the allegations contained therein; that such motion was likewise overruled; that relator then demurred to the charge contained in the warrant because the facts stated therein do not constitute an offense, the charge is not in conformity with constitutional requirements, and Section 2923.41, Revised Code, is unconstitutional and void; and that the demurrer was overruled.
The prayer is for a writ of prohibition commanding the Mansfield Municipal Court and its judge, Marriott, to desist from proceeding further in the case therein.
Respondents have filed a demurrer to the petition on the ground that it does not state facts which show a cause of action.
The case has been submitted on the petition and the demurrer thereto.
Mr. H.M. Rust, for relator.
Mr. Richard M. Christiansen, city solicitor, and Mr. John J. Rinehardt, for respondents.
The question presented is whether the petition in this case is demurrable. This court is of the opinion that it is. It does not state operative facts which show that relator has no adequate remedy in the ordinary course of the law.
A writ of prohibition will ordinarily not be allowed where there is an adequate remedy in the ordinary course of the law and may not be employed as a substitute for appeal. State, ex rel. Rhodes, Aud., v. Solether, Judge, 162 Ohio St. 559, 124 N.E.2d 411.
Demurrer sustained and writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.