State, Ex Rel. Mahler v. Buse ( 1928 )

This is an original action in prohibition, in which the relator, Viola Mahler, seeks to prohibit the respondent, as a justice of the peace of Mill Creek township, Hamilton county, Ohio, from hearing and adjudicating a certain action against the relator, brought before that court by one C.A. Price.

It is alleged here that the relator, defendant in the case in which the justice of the peace seeks to exercise jurisdiction, was domiciled in the city of Cincinnati; that she was served with summons in the city of Cincinnati; that Mill Creek township is wholly outside the corporate limits of the city; and that the defendant, the justice of the peace, is without jurisdiction over the relator, for the reason that service of summons was made within the corporate limits of the city of Cincinnati.

The first question for consideration is whether or not a writ of prohibition is the proper remedy. The use of a writ of prohibition has been frequently set forth by courts and text-writers. All are in accord in defining it as an extraordinary judicial writ, which may be issued out of a court of superior jurisdiction for the purpose of preventing an inferior court or tribunal from usurping a jurisdiction with which it is not legally vested.

The question presented in every instance where the issuance of a writ of prohibition is sought is whether it clearly appears that the tribunal, whose action it is sought to prohibit, has no jurisdiction of the cause which it is attempting to adjudicate, or is about to exceed its jurisdiction.

The rule taken from the cases and from the textbooks limits the use of the writ to the usurpation of jurisdiction over the subject-matter of the action.

There is no allegation here that the justice of the peace is attempting to usurp powers concerning the subject-matter of the action. The only reason alleged and stressed for the issuing of the writ here is that there is an attempt by the justice to exercise jurisdiction over the person, through the service of summons outside his territorial limits.

The relator has the remedy of motion to quash the service. She could ignore the action, and, if not before the court through proper service, the judgment would be void.

We are therefore of the opinion that under authority of the following Ohio decisions, State, ex rel. Garrison, v. Brough,94 Ohio St. 115, 113 N.E. 683; Kelley, Judge, v. State, ex rel.Gellner, 94 Ohio St. 331, 114 N.E. 255; State, ex rel. Barbee, v. Allen, Judge, 96 Ohio St. 10, 117 N.E. 13, and State, exrel. Carmody, v. Justice, Judge, 114 Ohio St. 94, 150 N.E. 430, the relator is not entitled to the extraordinary writ of prohibition. The writ will be denied.

Were the question of the jurisdiction of the person of the relator, through the service of summons in the city of Cincinnati, properly before us, we are of the opinion, and would hold, that Sections 10223, 10225, 3245, 3251, and 3564, General Code, preclude the acquiring of jurisdiction over her person through the service of summons in the corporate limits of the city of Cincinnati.

Writ denied.

MILLS and CUSHING, JJ., concur.