State Ex Rel. Luckhaupt v. McClelland

In addition to the admission in the affidavit that an appeal had been taken from the Probate Court to the Court of Appeals, counsel for relator in oral argument in this court admitted such procedure had been pursued.

The affidavit of relator admits that the Probate Court exercised discretion. The writ of mandamus will issue to compel the exercise of judicial discretion but not to control it.State, ex rel. Dunphy, v. Graham, Judge, 146 Ohio St. 547,67 N.E.2d 321, and cases cited therein.

The writ of mandamus will not issue as a substitute for an appeal. Shelby v. Hoffman, 7 Ohio St. 450; State, ex rel.Cook, Supt., v. Court of Common Pleas, 144 Ohio St. 461,59 N.E.2d 376; State, ex rel. Stein, v. Sohngen, Dir.,147 Ohio St. 359, 71 N.E.2d 483; 25 Ohio Jurisprudence, 1013, Section 34.

The motion to strike from the files is sustained and the petition is dismissed on authority of State, ex rel. Smith, v.Young, Judge, 137 Ohio St. 319, 29 N.E.2d 564.

Petition dismissed.

MATTHIAS, HART, ZIMMERMAN, STEWART, TURNER and TAFT, JJ., concur.

WEYGANDT, C.J., concurs in the judgment and in the per curiam opinion for the additional reason that, as frequently and consistently observed by this court, Section 12285, General Code, defining the function of the writ of mandamus, restates the common-law rule and prohibits use of the writ for the purpose of controlling judicial discretion. *Page 19

In addition to the admission in the-affidavit that an appeal had been taken from the Probate Court to the Court of Appeals, counsel for relator in oral argument in this court admitted such procedure had been pursued.

The affidavit of relator admits that the Probate-Court exercised discretion. The writ of mandamus will issue to compel the exercise of judicial discretion-but not to control it. State, ex rel. Dunphy, v. Graham, Judge, 146 Ohio St., 547, 67 N. E. (2d), 321, and cases-cited therein.

The writ of mandamus will not issue as a substitute-for an appeal. Shelby v. Hoffman, 7 Ohio St., 450; State, ex rel. Cook, Supt., v. Court of Common Pleas, 144 Ohio St., 461, 59 N. E. (2d), 376; State, ex rel. Stein, v. Sohngen, Dir., 147 Ohio St., 359, 71 N. E. (2d), 483; 25 Ohio Jurisprudence, 1013, Section 34.

The motion to strike from the files is sustained and the petition is dismissed on authority of State, ex rel. Smith, v. Young, Judge, 137 Ohio St., 319, 29 N. E. (2d), 564.

Petition dismissed.

concurs in the judgment and in the-per cu,riam opinion for the additional reason that, as-frequently and consistently observed by this court, Section 12285, General Code, defining the function of' the writ of mandamus, restates the common-law rule and prohibits use of the writ for the purpose of con-trolling judicial discretion.