468 N.E.2d 129 | Ohio Ct. App. | 1983
This case is presently before the court as an original action pursuant to petitioner's "complaint" for a writ of habeas corpus. (The writ of habeas corpus is properly sought by way of petition, not complaint. See R.C.
An earlier appeal to this court was dismissed on October 20, 1983, for lack of a final appealable order. The particular order from which petitioner attempted to perfect his appeal had not been file-stamped in the trial court — thus leaving this court unable to determine whether petitioner's notice of appeal was timely filed, a well-settled and well-known jurisdictional prerequisite. See App. R. 4. Petitioner now seeks to have his case reviewed by this court through a writ of habeas corpus.
However, when there exists an adequate remedy in the ordinary course of law, habeas corpus is not, and may not be used as, a substitute for appeal. See In re Hunt (1976),
In this case, petitioner's "adequate remedy in the ordinary course of law" is to pursue his right of appeal, which was not irretrievably foreclosed by our October 20 dismissal. To clarify what appears to be a matter of clerical confusion, we observe that R.C.
"The clerk of the court of common pleas shall indorse on eachpleading or *55 paper in a cause filed in his office the time of filing, enter all orders, decrees, judgments, and proceedings of the courts of which he is the clerk, make a complete record when ordered on the journal to do so, and pay over to the proper parties all monies coming into his hands as clerk." (Emphasis added.)
"The clerk of the court of common pleas shall indorse uponevery paper filed with him the date of the filing thereof, and upon every order for a provisional remedy and upon every undertaking given thereunder, the date of its return to his office." (Emphasis added.)
Endorsing the fact and date of filing on the judgment entry itself is evidence that it was filed on that date. See Ferrebee
v. Boggs (1969),
In addition to the foregoing statutory provisions, Civ. R. 58 clearly states that after the court has prepared and signed a judgment entry, "the clerk shall thereupon enter it." The rule also states that "[a] judgment is effective only when filed with the clerk for journalization." We further note that, after the appeal sub judice was dismissed on October 20, petitioner had ten days, under App. R. 26, within which to furnish certified proof of the actual date of the judgment entry containing the order he wished to appeal. Petitioner did not do so, however, initiating, instead, the present habeas corpus action.
Accordingly, since petitioner may still appeal as a matter of right, he has an adequate remedy in the ordinary course of law, and habeas corpus will not lie in this case. If, however, thirty days has expired (i.e., if it is found or shown from a certified copy of the trial court clerk's docket sheet that petitioner's notice of appeal was untimely filed), petitioner may still pursue appellate review in accordance with the provisions of App. R. 5 ("appeal by leave of court in criminal cases").
Treating petitioner's "complaint" as a petition for a writ of habeas corpus, we find that the same must be denied, as heretofore explained. Said petition is hereby dismissed at petitioner's costs. It is so ordered.
Petition denied.
CONNORS, P.J., and RESNICK, J., concur.