Opinion
No. 36306
Decided March 23, 1960.
Prohibition — Writ not available where other adequate remedy — Not substitute for appeal.
IN PROHIBITION.
Relator, Terrett, has invoked the original jurisdiction of this court to obtain a writ of prohibition to prevent the Court of Appeals of the Seventh Appellate District from proceeding to journalize any order based on its opinion and which is contrary to a former finding wherein final judgment was rendered for relator and from further hearing or deciding any matters in connection therewith. Also, relator asks that the case be ordered dismissed.
Relator alleges in his petition that a bastardy action was brought against him in the Common Pleas Court; that he was found guilty; that relator was deprived of a fair trial by erroneous rulings of the court with regard to blood tests and availability of certain witnesses for whom "the court and relator's lawyer wrongfully contended that privilege existed"; that against relator's request an appeal was taken on behalf of relator; and that the respondent court reversed the judgment as contrary to law and rendered final judgment for relator. Relator alleges further that he believes counsel for plaintiff in the bastardy proceeding, without notice to relator, caused the respondent court to prepare an opinion not in conformity with the court's original finding in favor of relator; that relator objected and excepted to any action by the respondent court which would journalize the opinion which was contrary to the original finding; that the purported opinion or any journal entry based thereon is void for lack of jurisdiction; and that the court will, unless restrained, place such journal entry on record.
The respondents demurred to the petition on the ground that the facts stated therein do not constitute a cause of action.
The case has been submitted on the petition and the demurrer thereto.
Mr. Russell Terrett, in propria persona. Mr. Mark McElroy, attorney general, and Mr. DeForest Mellon, for respondents.
The petition fails to 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 a substitute for appeal.
The demurrer to the petition is sustained, and the writ of prohibition is denied.
Demurrer sustained and writ denied.
WEYGANDT, C.J., ZIMMERMAN, TAFT, MATTHIAS, BELL, HERBERT and PECK, JJ., concur.