Opinion
No. 29926
Decided December 20, 1944.
Prohibition — Writ not issued to restrain court in determining its jurisdiction — Or available as substitute for appeal — Common Pleas Court may determine parties to amended petition.
IN PROHIBITION.
The relators seek from this court a writ prohibiting the Court of Common Pleas of Cuyahoga county and the judges of that court "from making any order or finding, or entering any mandate from the said Court of Appeals or from taking any steps, or allowing any proceedings in said court to make or find relators, or any of them, parties defendant" in an action originally instituted in that court by the Superintendent of Banks of Ohio charging the defendants with mismanagement of the affairs of The Guardian Trust Company of which the relators were part-period directors.
The petition in prohibition filed in this court alleges numerous facts to support the contentions of the relators that the action by the Superintendent of Banks in the Court of Common Pleas was voluntarily dismissed as to them, and that no appeal as to them was perfected to the Court of Appeals.
Inter alia, the well pleaded facts hereafter briefly stated are admitted by the demurrer to the petition.
The Superintendent of Banks filed a fourth amended petition in the Common Pleas Court, omitting therefrom the part-period directors as defendants. That court dismissed the action, after sustaining motions of the remaining directors to strike the amended petition from the files.
The Superintendent of Banks prosecuted an appeal to the Court of Appeals. The part-period directors were not named as parties, they did not enter their appearance, they were not represented by counsel and they filed no briefs, although at the close of the hearing an amicus curiae memorandum was submitted to assist the court in any sua sponte consideration of jurisdiction of the part-period directors.
The Court of Appeals rendered an opinon finding that the part-period directors were parties in the Court of Common Pleas and in the Court of Appeals. Thereafter, part-period directors, appearing specially for the sole purpose of questioning the jurisdiction of the court and disclaiming any intention to enter a general appearance, filed an application for rehearing, which was overruled. The Court of Appeals entered an order reversing the Court of Common Pleas and remanding the cause to that court, for error in sustaining the motions of the defendants to strike the fourth amended petition from the files and dismissing the action.
The day following the filing of the entry of reversal, there was filed in the Court of Common Pleas, without leave of court or notice to part-period directors, an amendment to the fourth amended petition, purporting to add the names of part-period directors as parties defendant.
Messrs. Andrews, Hadden Putnam, Messrs. Boyd, Brooks Wickham, Messrs. Jones, Day, Cockley Reavis, Messrs. McKeehan, Merrick, Arter Stewart, Mr. George Wm. Cottrell, Messrs. Maurer, Bolton Mierke, Mr. W. Edmund Peters, Mr. Henry H. Pleasant, Messrs. Squire, Sanders Dempsey and Messrs. Thompson, Hine Flory, for relators.
Mr. Frank T. Cullitan, prosecuting attorney, and Mr. Saul S. Danaceau, for respondents.
From the foregoing summary of facts alleged in the petition before us, it is apparent that the relators are asking this court to prohibit the Court of Common Pleas from determining whether part-period directors are parties defendant by reason of the amendment to the fourth amended petition filed in that court.
The writ of prohibition is not an appropriate remedy for the correction of errors and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate. The issuance of the writ is not warranted to restrain action by a trial court in determining jurisdiction of the person or parties. Kelley, Judge, v. State, ex rel. Gellner, 94 Ohio St. 331, 114 N.E. 255; 32 Ohio Jurisprudence, 580, Section 20.
Furthermore, the relators may not in the present proceeding challenge the order of the Court of Appeals, since the writ of prohibition is not available as a substitute for appeal. State, ex rel. Kriss, v. Richards et al., Judges, 102 Ohio St. 455, 132 N.E. 23; and State, ex rel. Levy, v. Savord, Judge, 143 Ohio St. 451, 55 N.E.2d 735, and authorities cited therein.
The demurrer to the petition is sustained and the writ denied.
Writ denied.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, BELL, WILLIAMS and TURNER, JJ., concur.