State Ex Rel. Allied Chemical Co. v. Aurelius

474 N.E.2d 618, 16 Ohio App. 3d 69, 16 Ohio B. 73, 1984 Ohio App. LEXIS 12304

• Court: Ohio Court of Appeals
• Decided: February 21, 1984
• Docket: 48158
• Status: Published

Opinions

Jackson, P.J.

The relators have filed a petition for writ of mandamus, and request issuance of an alternative writ of mandamus, to overturn a decision of the Cuyahoga County Court of Common Pleas denying their motion for change of venue.

Relators are defendants in the case of Stillo, et al. v. Rubbermaid, Inc., et al. (Cuyahoga Cty. C.P. No. 52270). Rela-tors filed a motion in the trial court for change of venue to Wayne County, from Cuyahoga County, on the ground that proper venue does not lie in Cuyahoga County. The trial court denied their motion. Relators now request that a writ of mandamus issue to compel the trial court to transfer the proceeding to Wayne County.

Civ. R. 3(G) prohibits collateral attack upon an order solely on the ground of improper venue. The same rule specifically preserves the right to appeal from an error of the court regarding venue. Civ. R. 3(G) provides:

“The provisions of this rule relate to venue and are not jurisdictional. No order, judgment, or decree shall be void or subject to collateral attack solely on the ground that there was improper venue; however, nothing here shall affect the right to appeal an error of court concerning venue.”

The Staff Notes to this rule make clear that orders involving venue are not subject to collateral attack, but may be reviewed directly by way of appeal from final judgment:

“Rule 3(G) once again emphasizes the proposition that improper venue does not relate in any way to the power of a court to render a valid judgment. Venue is not jurisdictional or subject to collateral attack. However, an error of the court concerning venue may be subject to direct appeal at such time as there is a final appealable order.”

An order upon a motion granting or denying venue is interlocutory, and is not subject to immediate appellate review in Ohio. Snell v. Cincinnati Street Ry. Co. (1899), 60 Ohio St. 256, paragraph five of the syllabus. Federal court decisions to the contrary are not persuasive authority in Ohio, because federal statutes authorize interlocutory appeals. Some federal courts have also employed the extraordinary writs to review interlocutory orders involving venue. See 15 Wright, Miller & Cooper, Federal Practice and Procedure (1976), Section 3855. In Ohio, on the contrary, it is the strong policy of the law to deny extraordinary writs in such cases. See State, ex rel. Dunbar, v. Ham (1976), 45 Ohio St. 2d 112 [74 O.O.2d 213] (writ of prohibition denied).

Prior authority in Ohio for the proposition that mandamus will lie to correct errors involving venue was based upon a statute (G.C. 12000) which was specifically applicable to divorce and alimony. This statute has since been superseded by Civ. R. 3. See State, ex rel. Keller, v. Birrell (1948), 149 Ohio St. 145 [36 O.O. 482] 1 ; State, ex rel. Grogan, v. Wanamaker (1942), 139 Ohio St. 293 [22 O.O. 320],

Relators have an adequate remedy at law by way of appeal from final judgment. Accordingly, their petition for writ of mandamus is dismissed. 2

Writ dismissed.

McManamon, Ann, J., concurs. Nahra, J., dissents.

1 The dissent cites a quote from the text of State, ex rel. Keller, v. Birrell, supra, in support of the proposition that “issuing a writ of mandamus in such a case [denial of motion for change of venue] is not inconsistent with prior Ohio law.” This interpretation of the Birrell case is clearly inaccurate in view of the following facts. In Birrell, Judge Stewart stated:

“We are of the opinion that the question in this case has been substantially answered by this court in the case of State, ex rel. Grogan, v. Wanamaker, Judge, 139 Ohio St., 293 [22 O.O. 320] * * The sole question involves the construction of Section 12000, General Code, * * * [Id. at 148]. * *

“* * * Section 11415, General Code, * * * is the General statute providing for change of venue, * * * but Section 12000, General Code, applies only to divorce and alimony cases * * *.” (Emphasis added.) Id. at 149.

The petition for writ of mandamus in the case at bar does not involve divorce or alimony.

2 The judgment of this court in the case at bar is in conflict with a decision of the Ohio Ninth Appellate District in State, ex rel. Ohio Bell Telephone Co., v. Reece (June 28, 1978), Summit App. No. 8808, unreported. Because the issue in conflict has implications for the orderly administration of justice and the prompt and final disposition of civil cases, this court sua sponte certifies the record of this cause to the Supreme Court for review and final determination, pursuant to R.C. 2505.072 and Rule III of the Rules of Practice of the Supreme Court.

The issue upon which the decisions of this court and the Ninth Appellate District conflict is: “Does a writ of mandamus lie against an inferior court to compel the trial court to grant a change of venue where it is alleged that said Court has erroneously overruled such a motion for change?”