Summary
stating that amendment of pleadings by leave of court under Civ.R. 15 is a matter of judicial discretion
Summary of this case from Johns 3301 Toledo Cafe, Inc. v. Liquor Control Comm.Opinion
No. 78-144
Decided October 25, 1978.
Mandamus — Writ not allowed, when — Appeal remedy available.
APPEAL from the Court of Appeals for Summit County.
This action stems from a libel action pending before the Court of Common Pleas of Summit County. The trial court, hearing the matter on remand from the Court of Appeals, permitted the defendant to amend her answer. Appellants herein, who are plaintiffs in the libel action, then filed a complaint in the Court of Appeals naming as respondents the trial judge, the clerk of courts and the defendant in the libel action, seeking a writ of mandamus directing and commanding the trial judge to vacate his order permitting amendment of the answer, to enter an order striking the amended answer from the files, to "take judicial notice of the fact that defendant's subject libel is actionable per se and instruct the jury accordingly at the commencement of the retrial herein," and "to assure * * * a fair, unbiased jury determination of such cause in accordance with law"; and directing the clerk of courts to then journalize such orders of the trial court.
The Court of Appeals dismissed the complaint on the basis that relators had a plain and adequate remedy in the ordinary course of the law by way of appeal.
The cause is now before this court on appeal as a matter of right.
Messrs. Kelley, McCann Livingstone and Mr. Aubrey B. Willacy, for appellants. Mr. Stephan M. Gabalac, prosecuting attorney, and Mr. Steven J. Schwartz, for appellees Judge Theodore Price and James McCarthy.
Mr. Kenneth Boukis and Mr. James Easly, for appellee Ritenour.
Amendment of pleadings by leave of the court, Civ. R. 15(A), is a matter of judicial discretion, subject to review on appeal. Mandamus is not a substitute for appeal. State, ex rel. Marshall, v. Keller (1968), 15 Ohio St.2d 203, 205.
The judgment of the Court of Appeals is therefore affirmed.
Judgment affirmed.
LEACH, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.