STATE, EX REL. v. YOUNG, 137 Ohio St. 319 (1940)

29 N.E.2d 564

THE STATE, EX REL. SMITH v. YOUNG, JUDGE, ET AL.

No. 28286Supreme Court of Ohio.
Decided October 9, 1940.

Mandamus — Writ not issued to control judicial discretion — Or as substitute for appeal.

IN MANDAMUS.

The present proceeding in mandamus is a sequel t Smith v. Lau, 135 Ohio St. 191, 20 N.E.2d 232, wherein this court reversed the judgment of the Court of Appeals which affirmed the judgment of the Court of Common Pleas sustaining a demurrer to the first amended petition. The facts hereinafter recited are abstracted from the petition filed in this court.

After remand of the foregoing case, plaintiff filed a motion containing five branches, three for judgment on the pleadings, one for judgment by default and one for an open, stenographically reported court hearing on defendant’s failure to plead. After hearing, the court overruled the motion and granted the defendant leave to plead.

Relator filed a mandamus proceeding in the Court of Appeals to require the respondent resident judge to proceed with the cause in accordance with the mandate of this court. Further facts as to that litigation are not pleaded.

Thereafter appeal was taken by plaintiff from the overruling of his motion. The Court of Appeals dismissed the appeal for want of a final order. A motion to certify the record was overruled by this court, as well as a motion for a continuance to permit plaintiff below to procure a true and complete bill of exceptions. Also, an appeal as of right was dismissed Smith v. Lau, ante, 73, 27 N.E.2d 936.

Other allegations are set forth in the present mandamus petition but they need not be mentioned.

The petition prays for a writ directing the respondent judge or an assigned judge to set aside the judgment

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entered on the motion, to render judgment for plaintiff in the original action, to deny defendant in that action leave to plead and to revoke the leave to plead which had been granted.

This controversy was submitted to us upon a motion to strike from the petition some twenty allegations as either conclusions of law, immaterial, irrelevant, improper, evidential or redundant.

Mr. Paul D. Smith and Mr. Thomas H. Sutherland, for relator.

Messrs. Guthery Guthery, for respondents.

BY THE COURT.

In the foregoing statement of facts enough has been recited from the petition to demonstrate an attempt to invoke a writ of mandamus to control the exercise of discretion by the trial court or to substitute the writ for an appeal. The writ will not issue for such purposes. Section 12285, General Code State, ex rel. Jaster, Jr., Dir. of Highways, v. Kautz, Judge, 131 Ohio St. 103, 2 N.E.2d 1.

We recognize the rule that ordinarily a motion to strike from a petition should not be treated as a demurrer. This court has not adhered strictly to that rule. Finch v. Finch, 10 Ohio St. 501; Robinson v. Fitch, 26 Ohio St. 659; Zajachuck v Willard Storage Battery Co., 106 Ohio St. 538, 140 N.E. 405. The present proceeding presents another illustration of the necessity of relaxing a rigorous rule to facilitate the. administration of justice.

Without passing upon the twenty assigned grounds to strike from the petition, we sua sponte consider the motion as a demurrer, sustain the same and dismiss the petition.

Petition dismissed.

WEYGANDT, C.J., DAY, ZIMMERMAN, WILLIAMS, MATTHIAS, HART and TURNER, JJ., concur.

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