Maloney v. Sacks

173 Ohio St. (N.S.) 237

• Court: Ohio Supreme Court
• Decided: March 21, 1962
• Docket: No. 37042
• Status: Published

Opinion

Per Curiam.

This action was not brought in conformity with Section 2731.04, Revised Code, which requires that an “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.

Appellant was removed from the penitentiary to the Allen County jail under one of the exceptions named in Section 2725.24, Revised Code, thus relieving the warden from liability thereunder. The section reads in part: “A person committed to prison, or in the custody of an officer for a criminal matter, shall not be removed therefrom into the custody of another officer, unless by legal process, or unless the prisoner * * * by order of the proper court, is removed from one place to another within this state for trial # * (Emphasis added.)

Furthermore, mandamus may not ordinarily be employed as a substitute for an action at law to recover money.

Appellant has not shown a clear legal right to the writ of mandamus.

The judgment of the Court of Appeals 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.