State Ex Rel. Smith v. Young

29 N.E.2d 564, 137 Ohio St. 319, 137 Ohio St. (N.S.) 319, 18 Ohio Op. 348, 1940 Ohio LEXIS 471

Opinion

By the Court.

In the foregoing statement of facts enough has been recited from the petition to demonstrate an attempt to invoke a writ of mandamus to control the exercise of discretion by the trial court or to substitute the writ for an appeal. The writ will not issue for such purposes. Section 12285, General Code; State, ex rel. Jaster, Jr., Dir. of Highways, v. Kautz, Judge, 131 Ohio St., 103, 2 N. E. (2d), 1.

We recognize the rule that ordinarily a motion to strike from a petition should not be treated as a demurrer. This court has not adhered strictly to that rule. Finch v. Finch, 10 Ohio St., 501; Robinson v. Fitch, 26 Ohio St., 659; Zajachuck v. Willard Storage Battery Co., 106 Ohio St., 538, 140 N. E., 405. The present, proceeding presents another illustration of the necessity of relaxing a rigorous rule to facilitate the administration of justice.

Without passing upon the twenty assigned grounds to strike from the petition, we sua sponte consider the motion as a demurrer, sustain the same and dismiss the petition.

Petition dismissed.

Weygandt, C. J., Day, Zimmerman, Williams, Matthias, Hart and Turner, JJ., concur.