State Ex Rel. McGrath v. McDonnell, Unpublished Decision (2-6-2006), 2006 Ohio 535

State Ex Rel. McGrath v. McDonnell, Unpublished Decision (2-6-2006)

2006 Ohio 535 | Ohio Ct. App. | 2006

ORIGINAL ACTION JOURNAL ENTRY AND OPINION {¶ 1} Relator, Joseph James McGrath, requests that this court compel respondent judge to issue findings of fact and conclusions of law with respect to the petition for postconviction relief filed by relator in State v. McGrath, Cuyahoga County Court of Common Pleas Case No. CR-449129 on December 15, 2004.

{¶ 2} Respondent has filed a motion for summary judgment attached to which is a copy of the findings of fact and conclusions of law issued by respondent and received for filing by the clerk on December 16, 2005. Relator has not opposed the motion. Respondent argues that relief in this action in mandamus is inappropriate because she has discharged her duty. We agree.

{¶ 3} Relator has also failed to comply with Loc.App.R. 45(B)(1)(a) which requires that complaints in original actions be supported by an affidavit from the plaintiff or relator specifying the details of the claim. State ex rel. Hightower v.Russo, Cuyahoga App. No. 82321, 2003-Ohio-3679. The "Verification" attached to the complaint is not notarized. See R.C. 2319.01 through 2319.04. Cf. R.C. 2935.19 (form of affidavit). We also note that, although McGrath attaches an "Affidavit of Indigency" to his motion for leave to proceed in forma pauperis, the affidavit is not notarized. As a consequence, we deny his claim of indigency and order him to pay costs.

{¶ 4} Accordingly, respondent's motion for summary judgment is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).

Writ denied.

Sweeney, P.J., concurs. Calabrese, Jr., J., concurs.