PEGAN, APPELLANT v. CRAWMER, APPELLEE.
No. 94-2373
Supreme Court of Ohio
September 6, 1995
73 Ohio St.3d 607 | 1995-Ohio-175
Submitted May 9, 1995. APPEAL from the Court of Appeals for Licking County, No. 94-CA-00106.
{¶ 1} On October 19, 1994, appellant, Stella M. Pegan, filed a petition for a writ of habeas corpus in the court of appeals, alleging that she was entitled to custody of Candi Pegan, age five, under a 1990 judgment entry of the Juvenile Division of the Court of Common Pleas of Licking County, and that the child‘s father, appellee, Ronald L. Crawmer, was wrongly exercising custody under an October 1994 order of the Domestic Relations Division of the Court of Common Pleas of Licking County. Appellant alleged that the domestic relations division had no jurisdiction to award appellee temporary custody since it had dismissed appellee‘s motion for failure to file an affidavit required by
{¶ 2} On October 28, 1994, the court of appeals “denied” the “complaint for Habeas Corpus * * * for * * * failure to certify that a copy of same was served upon the named defendant.” On October 31, 1994, appellee, who apparently had actual notice of the habeas petition, filed a motion to dismiss, attaching evidence that he had refiled his motion with a proper affidavit in the domestic relations division, and on that basis the court had awarded him temporary custody. However, this evidence was never before the court of appeals, which had already denied the writ.
{¶ 3} Appellant appealed to this court as of right, alleging that the court of appeals inappropriately applied App. R. 13 (D) (papers filed shall contain proof of
Central Ohio Legal Aid Society, Inc., and Patricia L. Moore, for appellant.
Per Curiam.
{¶ 4} We reverse the judgment of the court of appeals for the following reasons.
{¶ 5} App. R. 1(A) states:
“These rules govern procedure in appeals to courts of appeals from the trial courts of record in Ohio.” (Emphasis added.)
{¶ 6} Therefore, App. R. 13 (D) could not have been applicable to this original action in the court of appeals.
{¶ 7} Appellant urges that the clerk should have been required to serve copies of the petition with summons under
“These rules prescribe the procedure to be followed in all courts of this state in the exercise of civil jurisdiction at law or in equity, with the exceptions stated in subdivision (C) of this rule.” (Emphasis added.)
{¶ 8}
“These rules, to the extent they would by their nature be clearly inapplicable, shall not apply to procedure * * * in all other special statutory proceedings * * *.”
{¶ 9} Courts of appeals have differed in their application of the Civil Rules to habeas corpus actions. In In re Terry (1988), 51 Ohio App. 3d 133, 137, 544 N.E.2d 1365, 1369, the Court of Appeals for Marion County held that “[t]he Civil Rules are inapplicable” in a habeas corpus proceeding. On the other hand, in Harshaw v. Farrell (1977), 55 Ohio App. 2d 246, 9 O.O. 3d 387, 389 N.E.2d 749,
{¶ 10} Therefore, all Civil Rules are not “clearly inapplicable” in habeas actions “by their nature.” However, whatever the applicability of a particular Civil Rule, it is evident that
{¶ 11} In the instant case, the court of appeals had before it a petition alleging unlawful custody of a minor under a void court order. The action should have proceeded under
Judgment reversed and cause remanded.
MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ., concur.
DOUGLAS, J., concurs in judgment only.