People v. Barber, Unpublished Decision (2-25-1998) ( 1998 )

[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] DECISION AND JUDGMENT ENTRY

* * * * * Petitioners, Paul Richard Tinsler and Sandra Kay Tinsler, have filed a complaint seeking a writ of prohibition against respondents, Judge James Barber and the Fulton County Court of Common Pleas. Petitioners are defendants in a lawsuit presently pending in the Fulton County Court of Common Pleas, in which Farmers and Merchants State Bank has sought the sale of petitioners' farm equipment in payment of a prior judgment entry.

We initially note that 6th Dist.Loc.App.R. 6 requires that the party instituting an original action must "also file a praecipe directing the clerk of the court of appeals to serve a copy of the complaint on each other party at the addresses listed in the praecipe." Petitioners have failed to include a praecipe, which warrants a dismissal. However, we also note that petitioners' complaint fails to establish that a writ of prohibition is the proper vehicle for the relief they seek.

A writ of prohibition is an extraordinary writ which will only be issued if a relator can prove:

"(1) the court or officer against whom it is sought must be about to exercise judicial or quasi-judicial power, (2) the exercise of such power must be clearly unauthorized by law, and (3) it must appear that the refusal of the writ would result in injury for which there is no adequate remedy in the ordinary course of law." State ex rel. La Boiteaux Co. v. Court (1980), 61 Ohio St.2d 60, 61.

Prohibition is not "concerned with the exercise of discretion by an inferior tribunal having jurisdiction of the subject matter and the parties in a cause before it. That issue is for the determination of the reviewing court." State ex rel. Staton v.Common Pleas Court (1965), 5 Ohio St.2d 17, 22.

In this case, petitioners have failed to allege any facts which indicate that respondents are clearly exercising any unlawful or unauthorized power. In addition, petitioners have or had an adequate remedy at law by a direct appeal of the final judgment.

Accordingly, petitioners' complaint for writ of prohibition is dismissed at petitioners' costs.

_______________________________ George M. Glasser, J. JUDGE

_______________________________ Melvin L. Resnick, J. JUDGE

_____________________________ James R. Sherck, J. JUDGE

CONCUR.

RESNICK, M.L., J.,

concurs but only as to the dismissal due to lack of praecipe.