STATE, D.P. INC. v. MCCARROLL, JUDGE, 167 Ohio St. 210 (1958)

147 N.E.2d 254

THE STATE, EX REL. DEVILLE PHOTOGRAPHY, INC. v. MCCARROLL, JUDGE

No. 35392Supreme Court of Ohio.
Decided January 22, 1958.

Mandamus — To compel court to render judgment in relator’s favor — Writ not available to control judicial discretion.

IN MANDAMUS.

Relator, in its petition in mandamus filed originally in this court, alleges that it brought in the Canton Municipal Court 51 cases, all actions for judgments on cognovit notes against various persons; that 49 of the notes were payable to DeVille Studios, but the petitions were in the name of DeVille Photography, Inc.; that relator moved the court for leave to amend the petitions to show that relator used the trade style, “DeVille Studios”; and that respondent, as Judge of the Canton Municipal Court, abused his discretion by refusing to grant leave to amend and by refusing to sign the judgment entries.

The prayer is for a writ requiring respondent to render judgment in favor of relator in each of the 51 cases.

To this petition respondent filed a demurrer on the ground that the petition does not state a cause of action.

Mr. James Maxwell, Jr., for relator.

Mr. George M. Davidson, Jr., for respondent.

Per Curiam.

Relator’s prayer that respondent be required to render judgment “in favor of the relator” in each of the 51 cases is an attempt to control the judicial discretion of the

Page 211

respondent judge, in that he is requested to render a particular judgment in each particular case.

Section 2731.03, Revised Code, provides that “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.”

“Although mandamus will lie in a proper case to compel a judicial tribunal to exercise an existing jurisdiction, the remedy has never been extended so far as, or ever used, to control the discretion and judgment of such tribunal acting within the scope of its judicial power. The writ will not issue to direct in what particular way the court shall proceed or shall decide a particular matter, or to correct or reverse a decision already reached * * *.” 35 American Jurisprudence, 29, Section 258. See, also, 25 Ohio Jurisprudence, 1139, Section 182.

The demurrer to the petition is sustained and the writ denied.

Writ denied.

WEYGANDT, C.J., ZIMMERMAN, STEWART, MATTHIAS, BELL and HERBERT, JJ., concur.