Summary
In State ex rel. Bier v. Court of Common Pleas of Butler County (1963), 175 Ohio St. 355, 194 N.E.2d 849, a private citizen, without connection to the prosecutor's office, filed an affidavit charging the relator with a misdemeanor.
Summary of this case from State ex Rel. Davet v. PiankaOpinion
No. 38195
Decided December 18, 1963.
Prohibition — Remedy not available as substitute for appeal — Not available to prevent anticipated erroneous judgment — Or for correction of errors.
APPEAL from the Court of Appeals for Butler County.
A private citizen, having no legal connection with the office of the prosecuting attorney, filed in the Court of Common Pleas an affidavit charging the relator, Isadore Bier, with a misdemeanor for the violation of Section 3773.24, Revised Code. A warrant was issued on such affidavit, and the sheriff was ordered to take relator before the Court of Common Pleas to answer the charge.
Relator appeared before the court and promptly moved to quash the affidavit, and also demurred thereto, on the grounds that the affidavit was defective in that it was made by a private person; that a misdemeanor case may be instituted in the Common Pleas Court only by the prosecuting attorney; and that the court was without jurisdiction to hear the case.
The court overruled the motion and the demurrer and set the case for trial.
Before trial on the merits, relator brought the instant action in prohibition in the Court of Appeals, seeking a writ prohibiting the respondents, Court of Common Pleas and the judge thereof, from hearing and deciding the cause. A demurrer was filed to the petition, on the ground that it does not state sufficient facts to constitute a cause of action.
The Court of Appeals heard the case on the petition and the demurrer thereto, sustained the demurrer and denied the writ.
An appeal as of right brings the cause to this court for review.
Messrs. Paxton Seasongood, Mr. Reuven J. Katz and Mr. Jackson Bosch, for appellant.
Mr. Robert L. Marrs, prosecuting attorney, and Mr. William E. Rathman, for appellees.
There is no question that the respondent court has jurisdiction of the subject matter, i.e., the offense of violating Section 3773.24, Revised Code, the Sunday closing law. The respondent court also had jurisdiction of the accused, relator herein.
The claim of lack of jurisdiction is based on the fact that the affidavit was filed by a private citizen rather than by the prosecuting attorney or his assistant or someone designated for that purpose.
The respondent Court of Common Pleas, a court of general jurisdiction, had authority to determine its own jurisdiction on the issue raised, and a party challenging its jurisdiction has a remedy at law by way of appeal from an adverse holding. State, ex rel. Miller, v. Court of Common Pleas of Lake County, 151 Ohio St. 397.
A writ of prohibition is not an appropriate remedy for the correction of errors or to prevent an anticipated erroneous judgment. State, ex rel. Winnefeld, v. Court of Common Pleas of Butler County, 159 Ohio St. 225; State, ex rel. Hanna, v. Court of Common Pleas of Cuyahoga County, 144 Ohio St. 272; State, ex rel. Miller, v. Court of Common Pleas of Lake County, supra.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, GRIFFITH, HERBERT and GIBSON, JJ., concur.