State ex rel. Roulhac v. Probate Court of Cuyahoga County

255 N.E.2d 636, 21 Ohio St. 2d 105, 50 Ohio Op. 2d 267, 1970 Ohio LEXIS 442

• Court: Ohio Supreme Court
• Decided: February 18, 1970
• Docket: No. 69-697
• Status: Published

Opinion

Per Curiam.

Relator contends that the action to determine heirship is res judicata and that the Probate Court has no jurisdiction to further consider the case or to rule on the motion to vacate and the motion for a new trial. The basis of relator’s contention is that an appeal was filed and that the defendant-appellant should have prosecuted all her alleged errors in that appeal, including those raised in the motion to vacate and in the motion for a new trial.

The questions raised by the relator’s contentions are beyond the scope of the case at bar. The Probate Court has general jurisdiction of the subject matter. A writ of prohibition will not be issued denying that court the right to determine its own jurisdiction. See State, ex rel. Levy, v. Savord (1944), 143 Ohio St. 451, 55 N. E. 2d 735. An order by the Probate Court vacating a judgment and ordering a new trial is a final order which may be reviewed upon appeal. See Price v. McCoy Sales & Service (1965), 2 Ohio St. 2d 131, 207 N. E. 2d 236. Where the remedy of appeal is available, the extraordinary writ of prohibition may not be invoked as a substitute for appeal. State, ex rel. Stefanick, v. Municipal Court of Marietta (1970), 21 Ohio St. 2d 102; State, ex rel. Levy, v. Savord, supra.

For the reasons stated, the demurrer to the petition is sustained, and the writ of prohibition is denied.

Writ denied.

Taft, C. J., O’Neill, SchNeideb, Hebbebt and DuNCAN, JJ., concur. Matthias and CobbigaN, JJ., not participating.