State ex rel. Pajestka v. Faulhaber

362 N.E.2d 263, 50 Ohio St. 2d 41, 4 Ohio Op. 3d 113, 1977 Ohio LEXIS 371

• Court: Ohio Supreme Court
• Decided: April 27, 1977
• Docket: No. 76-1013
• Status: Published

Opinion

Per Curiam.

It is apparent that counsel for appellants filed his motion for reconsideration pursuant to App. R. 26, which prescribes the proper procedure for making application for reconsideration. However, App. R. 1 specifically states that the appellate rules govern procedure in appeals to courts of appeal from the trial courts.

In the instant cause, appellants brought a mandamus action in the Court of Appeals, invoking that court’s original jurisdiction granted in Section 3, Artcile IV of the Ohio Constitution. Thus the appellants mistakenly attempted to file a motion not prescribed for a court having original jurisdiction.

The proper remedy for appellants in this situation is to file a motion for relief from judgment under Civ. R. 60(B)(5). This rule provides that a party may obtain relief from the final judgment, order or proceeding of a court for any reason justifying relief from the judgment, provided that such motion is made “within a reasonable time.”

Since the appellants improperly requested relief from the order of the Court of Appeals, this court affirms the action of that court in overruling the appellants’ motion for reconsideration.

Judgment affirmed.

O’Neill, C. J., Celebrezze, W. Brown, P. Brown, Sweeney and Locher, JJ., concur. Herbert, J., concurs in the judgment.