269 N.E.2d 629 | Ohio Ct. App. | 1971
Lead Opinion
This is an action in procedendo arising as a result of the refusal of the Franklin County Municipal Court to certify to the Common Pleas Court an action involving a third-party petition in excess of the monetary jurisdictional limits of the Municipal Court, and wherein the relator requests this court to direct respondents Franklin County Municipal Court and Judge Kenneth L. Sater to vacate the judgment of the trial court and certify the action to the Common Pleas Court.
Procedendo is an action wherein a court of superior jurisdiction orders a court of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what judgment shall be entered. Prohibition is exactly the opposite of procedendo. In neither case does the court attempt to direct definite or specific action. State, exrel. Niederlehner, v. Mack, Judge (1932),
In this case, the relator was involved in an automobile accident on May 8, 1969, at which time his motor vehicle was damaged and he received certain personal injuries. Relator procured from Northland Dodge, Inc., the company repairing his motor vehicle, a temporary, substitute motor vehicle for which he became obligated to pay the reasonable value of the use thereof. Northland Dodge, Inc., filed a petition in the Franklin County Municipal *115 Court to collect what it alleges to be the reasonable value of the use of the temporary, substitute vehicle. Relator filed an answer consisting of a general denial and a third-party petition against those individuals responsible for causing his personal injuries and property damage. The amount of damages requested included the amount of the claim for the use of the temporary, substitute automobile. The Municipal Court refused to certify the case, although the amount of the third-party claim was in excess of the monetary jurisdiction of the court, to the Common Pleas Court and instead dismissed the third-party petition.
A number of potential questions are raised, the first of which is whether R. C.
"(A) At any time after commencement of an action a defendant, as a third-party plaintiff, may file a petition and cause a summons to be issued and served upon any person, including a co-defendant, who is or may be liable to him for all or part of the plaintiff's claim against him. The third-party plaintiff need not obtain leave to file the third-party petition if he files it not later than ten days after he files his original answer."
R. C.
This section does not permit a defendant, in a small suit involving a medical or a car repair bill, to bring in, by third-party petition, a major personal injury claim. This is obviously not what the legislature contemplated, intended or said. To so hold would be to allow the tail to wag the dog. Inasmuch as all that the defendant can do under R. C.
If the defendant, as in the instant case, has an additional claim for personal injuries, or if his claim is broader than the mere account which is being sued on, the defendant has an option of bringing the third party into the present suit and litigating the third-party obligation with respect to that account, in which case defendant is limited to the amount of the original petition; or, defendant may choose to waive the filing of the third-party petition and litigate the full claim which he may have against a third party in a separate action. We find, therefore, that R. C.
It is further provided in R. C.
In the case herein, the third-party defendants filed a *117
motion to strike the third-party petition and it was sustained by the respondent court. It is alleged in the petition herein and admitted by the answer, that by the third-party petition relator sought recovery in the amount of $15,000. Thus, it is clear that relator sought recovery of damages in addition to recovery of all of the plaintiff's claim against defendant. Accordingly, the third-party petition herein is not a proper third-party petition pursuant to R. C.
Since there is no clear duty upon the respondent court to proceed further with the third-party petition or to certify the cause to the Common Pleas Court, the writ will be denied and the petition dismissed.
Writ denied.
WHITESIDE, J., concurs.
Concurrence Opinion
It is with some reluctance that I concur in the result reached by my colleagues. My reluctance is due to my fear that the position taken may tend to limit the scope of, and defeat the purpose for the enactment of R. C.
Concurrence is required, however, because R. C.
"Any party may move to strike the third-party claim, or for its severance or separate trial. If the third-party defendant is an employee, agent, or servant of the third-party plaintiff, the court shall order a separate trial upon the motion of any plaintiff. A third-party defendant may *118 proceed hereunder against any person [Rule 14 inserts, the words `not a party to the action' at this point] who is or may be liable to him for all or part of the claim made in the action against the third-party defendant."
The "shall" directive is to order a separate trial if the third-party defendant is an employee, agent, or servant of the third-party plaintiff. Such language seems to imply that in all other situations, disposition of the motion to strike lies within the sound discretion of the trial court.
In the present cause, the third-party petition prayed for an amount in excess of the jurisdiction of the Municipal Court. The disposition of this prayer by the majority opinion establishes another reason for concurrence. The amount prayed for brings into focus R. C.
To deny the writ of procedendo in this case for these two specific reasons is not to limit or foreclose the statutory right of the defendant third-party petitioner to have his complaint heard along with the entire matter involved in the negligence claims in an action brought by a party representing only one facet of the case.
A recent decision by the Eighth District Court of Appeals, styled Kacian v. Illes Constr. Co. (1970),
In Kacian, the trial court followed what seems to be a more acceptable procedure. It made a decision on what it felt was the law applicable to the case before it. Such a decision is the subject of appeal. In contrast, the Municipal Court of Franklin County sustained the motion to strike the third-party petition and refused to take jurisdiction to decide any question of law or fact. Such an order seems an arbitrary decision amounting to a refusal to take jurisdiction.
In this case, I agree, a writ should not issue.