Opinion
No. 29103
Decided May 27, 1942.
Mandamus — Writ not substitute for appeal — Right to trial de novo in Court of Appeals — Foreclosure of mechanic's lien, denial of indebtedness and breach of contract.
IN MANDAMUS.
Relatrix filed her amended petition in this court against the respondents as judges of the Court of Appeals of the First Appellate District. The cause was submitted on demurrer to the amended petition.
The well-pleaded, determinative allegations, briefly summarized, are:
The Common Peas Court of Butler county entered judgment against the relatrix for $633.50 and ordered foreclosure of a mechanic's lien upon her real estate. That litigation involved recovery for installing a heating apparatus, denial of indebtedness and breach of contract and warranty.
She perfected an appeal on questions of law and fact. The Court of Appeals promulgated a per curiam opinion, reading:
"The proceedings had in this case, as disclosed by the record, the bill of exceptions, stipulations, and what is designated a pretrial conference lead us to the conclusion that substantial justice was done and that no prejudicial error intervened.
"The judgment is affirmed."
Relatrix filed an application for rehearing, reciting that the appeal was "submitted upon the same evidence adduced below" and requesting an opinion stating the facts which were material in determining whether error intervened. The Court of Appeals overruled the application for rehearing and, finding no error prejudicial to the then appellant, affirmed the judgment of the Court of Common Pleas. The journal entry stated that the cause was heard on appeal on questions of law.
Relatrix prays for a writ of mandamus from this court directing the Court of Appeals to try her cause de novo.
Mr. Edw. Everett Rice, for relatrix.
Messrs. Baden Fiehrer and Mr. Jack Bosch, for respondents.
Relatrix relies upon Section 6, Article IV of the Constitution, and contends it was the mandatory duty of the respondents "by virtue of Sections 12223-21 and 12223-30, General Code, and said constitutional provision, to retry the case, and to prepare, render and cause to be entered, a decision therein by opinion and entry, because the same was appealed to it for a trial de novo."
The extraordinary writ of mandamus may not be employed as a substitute for appeal. 25 Ohio Jurisprudence, 1013, Section 34; State, ex rel. Barner, v. Marsh, Clerk, 120 Ohio St. 222, 165 N.E. 843.
The demurrer to the amended petition is sustained and a writ of mandamus is denied.
Writ denied.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.