Opinion
No. 31720
Decided July 13, 1949.
Wills — Contest — Interest of contestant in estate — Mandamus to compel decision on motion for abatement and dismissal — Writ not issued to control judicial discretion — Section 12285, General Code — Motion continued for hearing at trial on issues joined by pleadings.
IN MANDAMUS.
The present proceeding in mandamus was instituted in this court. The facts hereinafter recited are summarized from the petition.
An action to contest a will was brought by the stepson of testatrix. Her brothers, inter alios, were named defendants and an answer was filed alleging that the testatrix revoked a prior will under which the contestant was a beneficiary and that he has no interest as heir or legatee under her last will.
The Common Pleas Court overruled a motion of defendants to set the cause for hearing only upon the issue of the interest of the contestant, and sustained a motion to strike from the answer the allegation of lack of interest.
The Court of Appeals dismissed an appeal by the defendants, for the reason that the orders appealed from were not final.
Thereafter, the defendants filed in the Common Pleas Court a motion for an order of abatement and dismissal of the action to contest the will, on the ground that the testatrix had revoked her prior will by destroying it and, therefore, the contestant has no interest in the estate entitling him to contest her later will. The contestant then filed a motion to dismiss the motion for an order of abatement and dismissal. The Common Pleas Court overruled the motion of the contestant and declared that the contestant's interest was a question for the court preliminary to submitting to the jury the issue in the pleadings. The court declared further that the motion of the defendants for abatement and dismissal would be passed and continued for hearing and determination by the trial court when the case was assigned for trial on the issues joined by the petition and answer.
The defendants filed a motion for the court to reconsider and then decide the motion for abatement and dismissal and not pass that motion for future decision.
The prayer of the petition in mandamus is for a writ directing the respondent, as judge of the Court of Common Pleas, to consider and decide the motion for abatement and dismissal.
The cause was submitted to this court on the petition and demurrer thereto.
Mr. Francis M. Thompson, for relators. Messrs. Baker Baker and Messrs. Wilkins Lloyd, for respondent.
Section 12285, General Code, reads:
"The writ [of mandamus] may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion."
The Court of Common Pleas exercised its judgment, first, in overruling the motion to set the will contest for hearing only upon the issue of the interest of the contestant, and, second, in overruling the contestant's motion to dismiss the defendants' motion for an order of abatement and dismissal, and continuing the latter motion for determination when the will-contest case was assigned for trial.
The relators in the present proceeding, who are defendants in the will contest, seek to control the exercise of discretion by the trial court. The writ of mandamus will not be issued to control judicial discretion. State, ex rel. McCamey, v. Court of Common Pleas, 141 Ohio St. 610, 49 N.E.2d 761; State, ex rel. Cook, Supt., v. Court of Common Pleas, 144 Ohio St. 461, 59 N.E.2d 376; and State, ex rel. Dumphy, v. Graham, Judge, 146 Ohio St. 547, 67 N.E.2d 321.
The relators contend Section 1685, General Code, made mandatory the duty of the respondent judge to determine the motion within 30 days after its submission. Section 557-1, Revised Statutes, the predecessor of Section 1685, was held directory in James v. West, Admr., 67 Ohio St. 28, 65 N.E. 156.
The demurrer to the petition is sustained and a writ denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.