34 N.E.2d 196
No. 28548Supreme Court of Ohio.
Decided May 14, 1941.
Mandamus — Judicial discretion not controlled by writ — Extending rule day and sustaining motion for judgment on pleadings — Sections 11347 and 12285, General Code.
IN MANDAMUS.
Mann, as plaintiff, brought an action for personal injuries in the Court of Common Pleas of Stark county. The court granted defendant in that action leave to move or plead six times. Prior to the expiration of the sixth extended rule day the plaintiff moved for judgment “on the pleadings” for “failure of defendant to answer or demur within leave period.” On the extended rule day the defendant moved to strike certain allegations from plaintiff’s petition. Thereafter plaintiff
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withdrew his motion for judgment “on the pleadings,” moved to strike defendant’s motion from the files as dilatory and not presented at the earliest opportunity, and moved that judgment be entered for plaintiff “upon the pleadings, as to his allegations made which have not been put in issue by defendant.” The court, for the seventh time, granted defendant further leave to plead, heard the motions of both plaintiff and defeildant on the same day, overruled plaintiff’s motion, sustained in part defendant’s motion to strike and ordered an amended petition filed.
Mann, as relator, filed his petition in this court for a peremptory writ of mandamus commanding the respondent judge to sustain the motion to strike from the files and to enter judgment in the personal injury action.
The respondent demurred to the petition in mandamus.
Mr. William P. Heyne, for relator.
Messrs. Lynch, Day, Pontins Lynch and Mr. Kenneth B. Cope, for respondent.
BY THE COURT.
Section 11347, General Code, relating to rule days, reads: “Upon such terms as are just, the court * * *, for good cause shown, may extend the time for filing any pleading.”
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.”
(Italics ours.) Section 12285, General Code. See, also, State, ex rel. Frye, Exr., v. MacConkey, Judge, 136 Ohio St. 462, 26 N.E.2d 457; State, ex rel. White, v. Jewell, Judge, 132 Ohio St. 300, 7 N.E.2d 410.
Although this court strongly disapproves of the
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dilatory proceedings below, the demurrer to the petition is sustained and a writ denied.
Writ denied.
WEYGANDT, C.J., TURNER, WILLIAMS, HART, ZIMMERMAN and BETTMAN, JJ., concur.
MATTHIAS, J., not participating.