State ex rel. Emery-Thompson Machinery & Supply Co. v. Jones
State ex rel. Emery-Thompson Machinery & Supply Co. v. Jones
Opinion of the Court
This court held in the case, of State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, that “The writ of prohibition is a high prerogative writ, to be used with great caution in the furtherance of justice and only where there is no other regular, ordinary and adequate remedy.”
To the same effect is the decision of this court in the case of State, ex rel. Garrison, v. Brough, 94 Ohio St., 115.
The jurisdiction of the court of appeals is conferred by the Constitution of the state of Ohio, as amended September 3, 1912. (Cincinnati Poly
It was further held by this court in the case of State, ex rel. Barbee, Exr., v. Allen, ante, 10, that where a court has jurisdiction of the subject-matter of a cause, the writ of prohibition cannot be made to serve the-purpose of a writ of error to correct mistakes of a lower court in deciding questions of law within its jurisdiction. In that case it was sought by writ of prohibition to prohibit the probate court of Fayette county from further proceedings in the matter of the probate of a will and settlement of an estate, after that court had found and determined that it had jurisdiction and admitted the will to probate.
This court held in that case that the probate court is vested by’the constitution with jurisdiction in probate and testamentary matters, and is recognized as competent to decide on its own jurisdiction and to exercise it to final judgment.
This is also held in the case, of Shroyer, Gdn., v. Richmond et al., 16 Ohio St, 455; The C., S. & C. Rd. Co. v. Village of Belle Centre, 48 Ohio St., 273; Crawford, Admr., v. Zeigler et al., 84 Ohio St, 224, and Wilberding, Admr., v. Miller et al., 90 Ohio St., 28.
If probate courts are competent to decide on their own jurisdiction and to exercise that jurisdiction
The constitution of this state-vests in the court of appeals appellate jurisdiction in the trial of chancery cases, and, to review, affirm, modify or reverse the judgments of the courts of common pleas, superior courts and other courts of record within the district as may be provided by law.
It is admitted in this case that the cause attempted to be appealed from the common pleas to the court of appeals is a chancery case. It is also admitted that a petition in error has been filed in the court of appeals to review the judgment of the court of common pleas in the same case. Therefore, under the plain provisions of the Constitution, the court of appeals has jurisdiction of the subject-matter of both the appeal and error proceedings; and it is competent to pass upon its own jurisdiction. If it makes a mistake in that regard, the remedy is by error, and not by writ of prohibition ; for this high prerogative writ will not be used either to deprive the court of appeals of its au
This court has not considered, and will not consider, in this proceeding whether the appellate jurisdiction of the court has been properly invoked by appeal or error proceedings, or whether such appeal or error proceedings áre prematurely brought, or whether the appeal or error proceedings are directed to a judgment or final order, or any other of the questions presented by the relators’ petition touching the question of the jurisdiction of the court of appeals. If the relators desire to make such questions in this court, it can be done only in the regular and ordinary way.
The demurrer to the petition is sustained, and the petition of the relators dismissed.
Writ refused.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.