Maloney v. Court of Common Pleas

173 Ohio St. (N.S.) 226

• Court: Ohio Supreme Court
• Decided: March 21, 1962
• Docket: No. 37028
• Status: Published

Opinion

Per Curiam.

This action in mandamus was not instituted in conformity with the provision of Section 2731.04, Revised Code, that “application for the writ of mandamus must be by petition, in the name of the state on the relation of the person applying.” Gannon v. Gallagher, Dir., 145 Ohio St., 170.

The relator in a mandamus proceeding has the burden of showing a clear legal right to the relief sought. This the appellant has failed to do. Section 2937.21, Revised Code, relied on by appellant, is not applicable after the trial, judgment and sentence. That section applies to “any stage of the proceeding. ’ ’

The judgment of the Court of Appeals denying the writ is affirmed.

Judgment affirmed.

Weygandt, C. J., Zimmerman, Matthias, Bell, Kerns and O’Neill, JJ., concur. Taet, J., concurs in the judgment. Kerns, J., of the Second Appellate District, sitting by designation in the place and stead of Herbert, J.