State ex rel. Casey v. Sixth District Appellate Court

278 N.E.2d 666, 29 Ohio St. 2d 90, 58 Ohio Op. 2d 157, 1972 Ohio LEXIS 504

• Court: Ohio Supreme Court
• Decided: February 9, 1972
• Docket: No. 71-682
• Status: Published

Opinion

Per Curiam.

Relator obtained a judgment in the Lucas County Common Pleas Court. Prior to the journalization of an entry overruling a motion for a new trial, a premature notice of appeal was filed. The respondent, Court of Appeals for Lucas County, presently has that appeal pending before it, having overruled relator’s motion to dismiss the appeal.

The premature notice of appeal was not renewed and was filed prior to the date of Appellate Rule 4a (effective July 1, 1971), which saves a premature notice of appeal and deems it to have been filed as of the date of the entry of the judgment or order appealed from.

Relator seeks to have this court prevent the Court of Appeals from proceeding on the ground that it lacks jurisdiction under Newton v. Republic Steel Corp. (1971), 25 Ohio St. 2d 42.

The relief sought clearly should have been by writ of prohibition, but our disposition of this cause does not turn on that ground alone.

Respondent court has jurisdiction to determine whether an appeal has been perfected. If relator feels the final appellate determination is incorrect, his remedy is by way of appeal.

The extraordinary writs may not be employed as a substitute for appeal. State, ex rel. Jaster, v. Kautz (1936), 131 Ohio St. 103; State, ex rel. Roulhac, v. Probate Court (1970), 21 Ohio St. 2d 105.

Writ denied.

O’Neill, C. J., Schneider, Herbert, Corrigan, Stern, Leach and BrowN, JJ., concur.