
    The State, ex rel. Shively, v. Nicholas, Judge.
    (No. 31706
    Decided March 23, 1949.)
    
      
      M-essrs. E. H. <& W. B. Turner and Mr. Clinton 8-Courson, for relatrix.
    
      Mr. Irvin Carl Delscamp, for respondent.
   Weygandt, C. J.

A study of th¿ petition of the relatrix discloses that the respondent’s demurrer clearly must be sustained on each of the grounds set forth.

Section 12285, General Code, defining the function of the extraordinary writ of mandamus, provides:

“The writ may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion.” (Italics supplied.)

This statute merely restates the elementary common-law rule and has been followed repeatedly and consistently by this court.

The relatrix is not asking that the respondent judge be required to exercise his judgment. That he has done. Instead the relatrix asks that this court control the judicial discretion of the respondent judge by compelling him to grant her a temporary restraining order and allow her temporary alimony in the sum of $35 per week. For this court to issue such a writ would be a plain violation of the rule.

It is equally elementary that to entitle a relator to a writ of mandamus, the record must disclose affirmatively that there is no plain and adequate remedy in the ordinary course of the law, and in the absence of such showing the writ will be denied. State, ex rel. First Natl. Bank, v. Village of Botkins, 141 Ohio St., 437, 48 N. E. (2d), 865. One remedy at law is the right of appeal. In the partition action the relatrix did avail herself of this remedy, and the Court of Appeals affirmed the decree of the Court of Common Pleas. The fact that the relatrix was unsuccessful in that appeal does not entitle her to substitute a writ of mandamus as an indirect means of perfecting a second appeal.

In the divorce action the only matters presented to the respondent judge were the requests of the relatrix for a temporary restraining order and for temporary alimony. In denying a restraining order «the respondent ' properly observed that the decree ordering the sale in the partition action had been affirmed by the Court of Appeals and had become final. The respondent trial judge hardly could be required or expected to reverse or interfere with a valid judgment of the Court of Appeals.

In denying temporary alimony the respondent said:

“The court finds on the motion for temporary alimony from the testimony and evidence offered by and on behalf of the parties, that the plaintiff has within her possession sufficient funds belonging to the parties to this action which were acquired during the marriage, to afford her ample support during the pendency of this action.
“The court will, however, allow the sum of one hundred dollars ($100) to the plaintiff to be applied to the expenses incurred in this suit * *

These matters had been considered and determined before the mandamus action was filed, and at the present time there is nothing further to be decided by the respondent. Later when the issues of divorce and alimony have reached a final determination in that court, the relatrix will have the usual remedy of appeal if she is dissatisfied therewith.

The respondent’s demurrer to the amended petition of the relatrix must be sustained and the writ denied.

Writ denied.

Matthias, Hart and Turner, JJ., concur.

Zimmerman,'Stewart and Taet, JJ., dissent.

Taft, J.,

dissenting in part. I am in accord with the opinion of the majority so far as it relates to temporary alimony and holds that the writ requested will not issue to require the respondent judge to grant a temporary restraining order.

Although the prayer of relator’s amended petition requests this court to issue a writ requiring respondent judge to grant such temporary restraining order, it also contains a prayer for general relief. The case is now before this court on demurrer to the amended petition. If its allegations warrant the granting of any relief to relator, the demurrer should be overruled. 25 Ohio Jurisprudence, 1188, Section 252.

In the majority opinion it is stated that the judge exercised his judgment. The order of respondent judge discloses that he refused to exercise the discretion, given him by Section 11996, General Code, to allow a temporary restraining order, solely because (a) he had “neither the right nor the power to enjoin another judge of the same court, nor the court' its.elf, from proceeding with a case properly pending in the court,” and (b) the Court of Appeals had “already passed upon the merits of the case and disposed of the issues between said parties.”

As appears from the amended petition, the relief sought is not an injunction against a judge of the same court or against the court itself but an injunction against individuals restraining them from proceeding in an action before the court. That such an injunction-may be proper is well settled. New York, C. & St. L. Rd. Co. v. Matzinger, 136 Ohio St., 271, 25 N. E. (2d), 349; Darst v. Phillips, 41 Ohio St., 514.

As to the other reason for such refusal given by respondent judge, the amended petition discloses that relator’s husband moved to strike the allegations of relator’s pleading in the partition action, raising the issues which she later sought to raise in her divorce-proceeding as a ground for issuance of the temporary restraining order, as “irrelevant, immaterial and not any defense” to the partition action. The court sustained that motion upon the ground that the allegations were “irrelevant in the suit for partition.” Its judgment and the judgment of the Court of Appeals affirming it established as between the parties-that the issues raised by those allegations were irrelevant in the partition proceedings. It would seem to follow necessarily that those courts did not pass upon the merits of issues which they held were irrelevant. Instead, their judgments established that those issues were not passed upon.

It would appear, therefore, that the respondent judge refused to exercise his discretion solely for reasons which were erroneous.

We agree with the opinion of the majority when they say it is elementary that, to entitle a relator to a writ of mandamus, the record must disclose affirmatively that there is no plain and adequate remedy in 'the ordinary course of the law.

The amended petition affirmatively discloses that relator has no adequate remedy in the ordinary course of the law. Relator could not appeal unless and until the court dismissed the petition without final hearing, or made a final order or judgment granting or refusing alimony. Section 12002, General Code. The amended petition discloses thht, in the meantime, if the status quo is not preserved by issuance of a temporary restraining order, the action which relator’s husband will take will prevent the court from protecting her rights in her home. It is, therefore, no answer to relator’s request for relief to state, as the majority opinion does, that “when the issues of divorce and alimony have reached a final determination * * * relatrix will have the usual remedy of appeal.” Any such remedy will then be too late.

This court cannot direct respondent judge to allow the temporary restraining order; but, if he refused to exercise his discretion to determine whether the restraining order should be allowed and such refusal was based solely upon erroneous grounds and relator has no other adequate remedy at law, this court should direct him to exercise that discretion. State, ex rel. Tailford, v. Bristline, Judge, 96 Ohio St., 581, 119 N. E., 138; State, ex rel. Smith, v. Smith, 69 Ohio St., 196, 68 N. E., 1044; 25 Ohio Jurisprudence, 1144, Section 187; 35 American Jurisprudence, 26, 45, Sections 254, 282.

Zimmerman and Stewart, JJ., concur in the foregoing dissenting opinion.  