State ex rel. Sowell v. Lovinger

Ohio Supreme Court

State ex rel. Sowell v. Lovinger

450 N.E.2d 1176, 6 Ohio St. 3d 21, 6 Ohio B. 18, 1983 Ohio LEXIS 769

CourtOhio Supreme Court

DecidedJuly 13, 1983

DocketNo. 82-1381

StatusPublished

Cited by19 cases

This text of 450 N.E.2d 1176 (State ex rel. Sowell v. Lovinger) is published on Counsel Stack Legal Research, covering Ohio Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Sowell v. Lovinger, 450 N.E.2d 1176, 6 Ohio St. 3d 21, 6 Ohio B. 18, 1983 Ohio LEXIS 769 (Ohio 1983).

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Opinion

Per Curiam.

The sole issue raised by this appeal is whether appellants have an adequate remedy at law by way of appeal and are thus precluded from seeking relief by way of mandamus and prohibition. See State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St. 2d 171, 173-174 [65 O.O.2d 395]; State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St. 2d 134, 137 [63 O.O.2d 229], certiorari denied (1974), 415 U.S. 913 [69 O.O.2d 42].

Appellants’ complaint challenges appellee Lovinger’s right to hold the office of acting judge. In State v. Staten (1971), 25 Ohio St. 2d 107, 110 [54 [23]*23O.O.2d 235], vacated on other grounds (1972), 408 U.S. 938, this court refused to consider, on appeal, appellant’s argument that one of the members of a three-judge panel was ineligible to hold office, stating: “The right of a de facto officer to hold office may not be questioned in a collateral proceeding to which he is not a party. Stiess v. State (1921), 103 Ohio St. 33, [41-42] * *

Accordingly, the issue raised in appellants’ complaint would not be reviewable upon an appeal from an adverse judgment rendered in the underlying action.

Moreover, we find that the allegations of the complaint, if proven, would present a claim that appellee Lovinger is “without jurisdiction whatsoever to act, [and in such a case,] the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court.” State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St. 2d 326, 329 [59 O.O.2d 387]. See, also, State, ex rel. Rockwell Internatl., v. Ford (1980), 61 Ohio St. 2d 234, 235 [15 O.O.3d 250].

Accordingly, we reverse the judgment of the court of appeals dismissing appellants’ complaint and remand the cause to that court for further proceedings.

Judgment reversed and cause remanded.

Celebrezze, C.J., W. Brown, Sweeney, Locher, Holmes, C. Brown and J. P. Celebrezze, JJ., concur.

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Per Curiam.

The sole issue raised by this appeal is whether appellants have an adequate remedy at law by way of appeal and are thus precluded from seeking relief by way of mandamus and prohibition. See State, ex rel. St. Sava, v. Riley (1973), 36 Ohio St. 2d 171, 173-174 [65 O.O.2d 395]; State, ex rel. Woodbury, v. Spitler (1973), 34 Ohio St. 2d 134, 137 [63 O.O.2d 229], certiorari denied (1974), 415 U.S. 913 [69 O.O.2d 42].

Appellants’ complaint challenges appellee Lovinger’s right to hold the office of acting judge. In State v. Staten (1971), 25 Ohio St. 2d 107, 110 [54 [23]*23O.O.2d 235], vacated on other grounds (1972), 408 U.S. 938, this court refused to consider, on appeal, appellant’s argument that one of the members of a three-judge panel was ineligible to hold office, stating: “The right of a de facto officer to hold office may not be questioned in a collateral proceeding to which he is not a party. Stiess v. State (1921), 103 Ohio St. 33, [41-42] * *

Accordingly, the issue raised in appellants’ complaint would not be reviewable upon an appeal from an adverse judgment rendered in the underlying action.

Moreover, we find that the allegations of the complaint, if proven, would present a claim that appellee Lovinger is “without jurisdiction whatsoever to act, [and in such a case,] the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by the inferior court.” State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St. 2d 326, 329 [59 O.O.2d 387]. See, also, State, ex rel. Rockwell Internatl., v. Ford (1980), 61 Ohio St. 2d 234, 235 [15 O.O.3d 250].

Accordingly, we reverse the judgment of the court of appeals dismissing appellants’ complaint and remand the cause to that court for further proceedings.

Judgment reversed and cause remanded.

Celebrezze, C.J., W. Brown, Sweeney, Locher, Holmes, C. Brown and J. P. Celebrezze, JJ., concur.

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Bluebook (online)

450 N.E.2d 1176, 6 Ohio St. 3d 21, 6 Ohio B. 18, 1983 Ohio LEXIS 769, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-sowell-v-lovinger-ohio-1983.

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