STATE, EX REL. HAMPTON, v. MANOS, 36 Ohio St.2d 141 (1973)

304 N.E.2d 597

[THE STATE, EX REL.] HAMPTON, v. MANOS, CHIEF JUSTICE.

No. 73-746Supreme Court of Ohio.
Decided December 12, 1973.

Prohibition — Writ not available, when — Criminal procedure — Exceptions by prosecuting attorney — Hearing in Court of Appeals — Parties.

IN PROHIBITION.

ON MOTION to dismiss.

After indictments pending against relator in the Court of Common Pleas of Cuyahoga County were dismissed on relator’s motion, the prosecuting attorney applied to the Court of Appeals for permission to file a bill of exceptions to the trial court’s order of dismissal. The Court of Appeals granted the application pursuant to R.C. 2945.70.

Relator now seeks a writ of prohibition in this court directed to respondent, the Chief Justice of the Court of Appeals for Cuyahoga County, to prevent the Court of Appeals from hearing and rendering a decision on the questions presented by the bill of exceptions.

It is relator’s argument that he is being denied his constitutional rights, because he may not “appear and defend in person and with counsel” in the hearing before the Court of Appeals, and that he has no other adequate remedy at law or in equity.

Respondent moves to dismiss the action for the reason that the “complaint fails to state a claim upon which relief may be granted.”

Messrs. Sindell, Sindell, Bourne, Stern Spero and Mr. Reuben M. Payne, for relator.

Mr. John T. Corrigan, prosecuting attorney, and Mr. Edward M. Walsh, for respondent.

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Per Curiam.

Relator’s sole contention is that he is unable to appear in the action pending in the Court of Appeals and defend in person and with counsel. He does not allege that he has made any effort to intervene in the Court of Appeals or been denied any participation by that court in the case.

Prohibition lies only where there is no other regular, ordinary and adequate remedy available to relator. State, ex rel. Nolan, v. ClenDening (1915), 93 Ohio St. 264.

Relator’s complaint does not state a claim for which relief by prohibition may be granted. Therefore, respondent’s motion to dismiss is sustained and the writ of prohibition is denied.

Writ denied.

O’NEILL, C.J., HERBERT, CORRIGAN, STERN, CELEBREZZE, W. BROWN and P. BROWN, JJ., concur.

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