State ex rel. Batten v. Reece

436 N.E.2d 1027, 70 Ohio St. 2d 246

Opinion

Per Curiam.

“Procedendo is a high prerogative writ of an extraordinary nature. It is an order from a court of superior jurisdiction to proceed to judgment * * *. Procedendo does not lie where * * * there is no clear legal right to such relief.” State, ex rel. Ratliff, v. Marshall (1972), 30 Ohio St. 2d 101, 102; State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St. 2d 171, 174.

Appellee’s order of January 21, 1981, constitutes a final order or judgment within the meaning of R. C. 2505.02.

*

Appellant argues, however, that appellee should be ordered to proceed to a determination of his motion for reconsideration. In order to give credence to appellant’s argument, we would be required to elevate the motion for reconsideration to the status of a motion for new trial. This, in fact, is precisely what appellant argues should be done. We decline to do so. See, e.g., Pitts v. Dept. of Transportation (1981), 67 Ohio St. 2d 378.

However, even had the court considered appellant’s motion as one for a new trial, his cause is not aided thereby. There was no “trial” in this cause. Without a trial, a motion for a new trial is a nullity. Cf. L. A. & D. v. Bd. of Commrs. (1981), 67 Ohio St. 2d 384.

A review of appellant’s complaint discloses that he can prove no clear legal right to the relief requested. Accordingly, the judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Celebrezze, C. J., W. Brown, Sweeney, Locher, Holmes, C. Brown and Krupansky, JJ., concur.

In part, R. C. 2505.02 provides: “An order affecting a substantial right in an action which in effect determines the action * * * is a final order which may be reviewed * * *."