State Ex Rel. Inland Properties Co. v. Court of Appeals of the Eighth Appellate District

84 N.E.2d 922 | Ohio | 1949

^* Reporter's Note: For former reports of litigation involving similar parties or property, see Halliday v. York Lake Co., 125 Ohio St. 608,183 N.E. 791; State, ex rel. Fulton, Supt. of Banks, v. Halliday,132 Ohio St. 179, 5 N.E.2d 407, certiorari denied, 301 U.S. 699,81 L.Ed., 1354, 57 S.Ct., 929, rehearing denied, 302 U.S. 773,82 L.Ed., 599, 58 S. Ct., 4; State, ex rel. Fulton, Supt. of Banks, v. Halliday,Admr., 133 Ohio St. 630, 15 N.E.2d 540; Cleveland TrustCo. v. York Lake Co., 134 Ohio St. 68, 15 N.E.2d 779; State,ex rel. Halliday, Admr., v. Court of Appeals, 134 Ohio St. 191,16 N.E.2d 260; Halliday v. Squire, Supt. of Banks, 137 Ohio. St. 388,30 N.E.2d 687; Halliday v. Squire, Supt. of Banks, 138 Ohio St. 398,35 N.E.2d 152, certiorari denied, 314 U.S. 678, 86 L.Ed. 543,62 S.Ct., 179; Halliday, Trustee, v. Lien, Supt., 139 Ohio St. 129,38 N.E.2d 411; State, ex rel. Fulton, Supt. of Banks, v. Halliday,140 Ohio St. 337, 43 N.E.2d 238, certiorari denied, 317 U.S. 680,87 L.Ed., 545, 63 S.Ct., 160, rehearing denied, 317 U.S. 711,87 L.Ed., 566, 63 S. Ct., 264; State, ex rel. Fulton, Supt., v. Halliday,142 Ohio St. 548, 53 N.E.2d 521;Union Properties, Inc., v. Wedge Protectors,Inc., 148 Ohio St. 148, 73 N.E.2d 805. Counsel filing the present petition in this court admitted in oral argument that motions had been filed in the Court of Appeals to expunge and obliterate the three entries appearing on the journal of that court, which motions were overruled, and that no appeals from such overriding were attempted. Such an admission by counsel is binding on a party.

Recapitulating, first, the petition alleges appeals were taken to this court to review the judgments which this proceeding in mandamus seeks to expunge and, second, no appeals were attempted from the overruling of the motions to expunge the throe entries from the journal of the Court of Appeals.

Where a plain and adequate remedy at law has been unsuccessfully invoked, the extraordinary writ of mandamus will not lie either to relitigate the same question or as a substitute for appeal. State, ex rel. Stanley, v. Cook, Supt.,146 Ohio St. 348, 66 N.E.2d 207, paragraphs 5 and 9 of the syllabus; 25 Ohio Jurisprudence, 1013, Section 34, and cases cited; State, ex rel. Dunphy, v. Graham, Judge, 146 Ohio St. 547,67 N.E.2d 321.

A judgment rendered by an inferior court may not be collaterally attacked by a proceeding in mandamus. 23 Ohio Jurisprudence, 1146, Section 1003; State, ex rel. Walke, v.Industrial Commission, 140 Ohio St. 311, 313,43 N.E.2d 282; State, ex rel. Barner, v. Marsh, Clerk, 121 Ohio St. 321,168 N.E. 173.

It may also be noted that the three corporations having been dissolved by judgments which are valid and unreversed, the named relators are not qualified to maintain the present proceeding in mandamus.

The demurrer to the petition is sustained and writ denied.

Writ denied.

WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.