Opinion
No. 34606
Decided February 15, 1956.
New trial — Motion for, in Court of Appeals — Request for oral argument on motion — Allowance of oral argument discretionary with court — Discretion not controlled by mandamus — Abuse thereof not alleged.
IN MANDAMUS.
The relator herein, Marion Maus, is a defendant in a case which was appealed to the Court of Appeals on questions of law and fact and tried de novo, being submitted on the transcript of the evidence in the trial court and additional evidence, resulting in a judgment adverse to relator. A motion for a new trial was filed and a request was made for an oral argument on the motion. The Court of Appeals denied the request for an oral argument and overruled the motion. An appeal has been taken from the judgment of the Court of Appeals and is now pending in this court on a motion to certify the record.
Before appealing to this court from the judgment of the Court of Appeals, relator instituted herein the instant action in mandamus against the judges of the Court of Appeals, seeking a peremptory writ directing the respondent judges to grant an oral argument on the motion for new trial. Relator does not allege an abuse of discretion on the part of the Court of Appeals or that it acted arbitrarily or unreasonably in denying the request.
Mr. F.E. Hunter, for relator.
Mr. John L. Russell and Mr. Evan W. Morris, for respondents.
The question presented is whether a party filing a motion for a new trial is entitled to an oral argument in open court in support of such motion.
Relator contends that she is entitled to an opportunity to orally argue the motion for new trial in the Court of Appeals, under authority of Rule III of the Courts of Appeals, which provides:
"No oral argument upon any motion shall occupy longer than 15 minutes on a side, unless the court, for special reasons to be assigned before the hearing, shall extend the time."
That rule does not make it mandatory for the court to allow oral argument on a motion for new trial. The allowing of oral argument on a motion for new trial is purely discretionary with the Court of Appeals, and, in the absence of an abuse thereof, an exercise of that discretion will not be disturbed by this court in a proceeding in mandamus. Mandamus will not lie to control judicial discretion. Section 2731.03, Revised Code; State, ex rel. Ticknor, v. Randall, Judge, 152 Ohio St. 129, 87 N.E.2d 340; State, ex rel. Shively, v. Nicholas, Judge, 151 Ohio St. 179, 84 N.E.2d 918; State, ex rel. Smith, v. Young, Judge, 137 Ohio St. 319, 29 N.E.2d 564.
The writ of mandamus prayed for is denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.
HART, J., not participating.