State Ex Rel. National Guarantee & Finance Co. v. Pfefferle

15 N.E.2d 510, 134 Ohio St. 28, 134 Ohio St. (N.S.) 28, 11 Ohio Op. 388, 1938 Ohio LEXIS 340

• Court: Ohio Supreme Court
• Decided: June 1, 1938
• Docket: 27048
• Status: Published

Opinion

This cause was submitted on demurrer to a petition in prohibition filed in this court.

These facts are pleaded:' The relator herein filed an action in replevin in the Municipal Court of Columbus, trial was had to the court acting as court and jury, right to possession was found in the defendant and damages assessed on March "21, 1938, and a motion for new trial which was filed within three days was overruled by the court on April 5, 1938. The relator perfected appeal on questions of law to the Court of Common Pleas of Franklin county on April 8, 1938.

On April 15, 1938, the defendant in the original replevin action filed a motion in the Municipal Court to modify the judgment in order to permit evidence to be offered to assess the value of the chattel property involved, and the relator, without reentering its appearance, interposed a motion to strike from the files the motion to modify the judgment! The defendant filed an amended motion to modify the judgment and the relator refiled its motion to strike from the files.

The relator now seeks a writ to prevent the respondent judge from hearing and determining the cause in the Municipal Court of Columbus.

The Municipal Court of Columbus had jurisdiction of the original replevin action instituted by the relator, and that court is authorized by Section 1558-77, General Code, to modify its judgments during term. The writ of prohibition will not be awarded to prevent an anticipated erroneous judgment when an adequate remedy is available by appeal. State, ex rel. Carmody, v. Justice, Judge, 114 Ohio St., 94, 150 N. E., 430.

Demurrer to petition stistained and writ denied.

Weygandt, C. J., Matthias, Day, Zimmerman, Williams, Myers and Gorman, JJ., concur.