State Ex Rel. Wilson v. Court of Common Pleas

63 N.E.2d 438, 146 Ohio St. 4, 146 Ohio St. (N.S.) 4, 31 Ohio Op. 452, 1945 Ohio LEXIS 344

• Court: Ohio Supreme Court
• Decided: October 24, 1945
• Docket: 30336
• Status: Published

Opinion

By the Court.

Counsel have stipulated and agreed that this court overruled a motion for leave to appeal from the findings and orders of the Court of Common Pleas dismissing the petition of the present relatrix as contestor in an election contest proceeding.

Counsel for relatrix in this mandamus action urge grounds for a writ to compel the Court of Common Pleas to hear the issues on the merits in the former, case in addition to those grounds urged in the proceeding on motion for leave to appeal. With the exception of the contention that the appeal on leave to this court authorized by Section 4785-172, General Code, does not provide an adequate remedy at law and therefore mandamus lies, all the additional grounds now asserted could have been presented in the former proceeding on motion for leave to appeal.

An adequate remedy at law is provided by that section.

The extraordinary writ of mandamus may not be invoked to review or relitigate the remaining grounds now pressed on behalf of the relatrix. Gannon v. Gallagher, Dir., 145 Ohio St., 170, 60 N. E. (2d), 666.

A proceeding in mandamus or in procedendo may not be made the instrumentality for review. State, ex rel. Barner, v. Marsh, Clerk, 120 Ohio St., 222, 165 N. E., 843.

Writ denied.

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