
    The State (ex rel. Devine, Pros. Atty.) v. Harter, Judge.
    (No. 35032
    Decided November 27, 1957.)
    
      
      Mr. Samuel L. Devine, prosecuting attorney, Mr. Earl W. Allison, Mr. Albert G. Giles and Mr. George B. Wolfe, for relator.
    
      Messrs. Isaac S Postlewaite, for respondent.
   Per Curiam.

Although it is difficult to determine from its journal entry the basis of the finding of the Court of Appeals in the habeas corpus action, it is apparently considered by both parties hereto that the basis was the failure of the trial judge to sign the journal entries. Belator, in his brief, says: “The only argument advanced to the Court of Appeals was that the judgment Avas allegedly defective because a written entry of sentence was not signed by the trial judge.” And respondent, in his brief, says: “If the Court of Appeals was right in holding that a journal entry in a criminal case must be signed by the trial judge * # *.”

It is argued by relator that, if failure to sign the entry constituted error, it Avas such an error that could be complained of only on appeal and could not be later made the basis for a discharge in habeas corpus, and that, therefore, the Court of Appeals had no jurisdiction to order such discharge. Unquestionably, the action of the Court of Appeals in- ordering the discharge would have been subject to review, but no appeal from such order was made by the Attorney General. Belator then argues that since he was not a party to the habeas corpus proceeding and had no right to appeal from the judgment of discharge he has no adequate remedy at law and must resort to this action in prohibition.

The majority of this court, however, is of the opinion that relator is adequately protected by a remedy in the ordinary course of the law and need not resort to the extraordinary remedy of prohibition.

The respondent in the habeas corpus proceeding, as a part of his return, would necessarily present as his justification for holding the prisoner the certificate of commitment from the clerk of courts. It is stipulated by the parties herein that this certificate constituted the “commitment papers.” It could have been prepared by the clerk on October 25, 1950, only as a result of the order of Judge Clifford made on October 18 and journalized on October 20. The “entry of commitment” referred to by the Court of Appeals, therefore, must have been the entry of October 20 and the certificate of commitment of October 25.

It is apparent that the Court of Appeals in the habeas corpus proceeding was in no way concerned with the entry of October 28, 1950, which journalized the overruling of the motion for a new trial, because that entry would not and could not be the basis for the holding of the prisoner by the warden.

It would appear reasonable that when the matter again came to the attention of the Common Pleas Court after the judgment of discharge in habeas corpus, it might have prepared a new certificate of commitment based on the entry of October 28. In any event, it is difficult to see how it can again pass on the motion for new trial which had previously been overruled and which overruling had been reviewed and affirmed by the Court of Appeals.

However, if there is an error in again passing on the motion for a new trial, it will be only an error. The Common Pleas Court certainly has jurisdiction to act, and, therefore, to act erroneously. If it commits error in again passing on the motion for new trial, such error might constitute a technical abuse of discretion which could be made the subject of an appeal by the relator to the Court of Appeals from the judgment of the Common Pleas Court sustaining a motion for a new trial. Heidtman v. City of Shaker Heights, 163 Ohio St., 109, 121, 126 N. E. (2d), 138. See, also, concurring opinion by Taft, J., in Lehman v. Haynam, 164 Ohio St., 595, 602, 133 N. E. (2d), 97.

It has been suggested that this court should deny to the Court of Appeals any jurisdiction in 1956 to interfere with what that same court did in 1950. It appears to the majority of the court, however, to be the more orderly process first to let the Court of Appeals, where most of the difficulties in this case originated, pass on the question, if it arises, of whether it would be error now in sustaining a motion for a new trial. This court could then review the judgment of the Court of Appeals on that question if it should appear to be erroneous.

Since we are of the opinion that relator has an adequate remedy in the ordinary course of the law, the application for a writ of prohibition is denied.

Writ denied.

Zimmerman, Stewart, Bell and Taet, JJ., concur.

Weygandt, C. J., Matthias and Herbert, JJ., dissent.

Weygandt, C. J.,

dissenting. The majority opinion concludes with the observation that more orderly procedure will result if the requested writ of prohibition is denied and the respondent judge is permitted to proceed.

Is this view sustained by the undisputed facts?

If this were not a serious matter, it would seem to require the Shakespearean title of a “Comedy of Errors” inasmuch as it presents an unbelievable combination of obvious fundamental mistakes, one result of which is that the single original action now has been multiplied into three — (1) the criminal case in the Court of Common Pleas, (2) the habeas corpus action in the Court of Appeals, and (3) the present prohibition action in this court.

The situation in the criminal case is simple and clear. Seven years ago the defendant was duly indicted and convicted of the offense of murder in the first degree. The jury recommended mercy. The trial court duly overruled the defendant’s motion for a new trial, and accordingly the defendant was sentenced to the Ohio Penitentiary as required by law. Subsequently the defendant duly perfected an appeal to the Court of Appeals. The judgment of the Court of Common Pleas in overruling the motion for a new trial was affirmed. There was no appeal from the judgment of the Court of Appeals. Under the rules of orderly procedure, that ended the matter, and the judgment became final. It still stands.

Then, after a lapse of six years, the present confusion started. The defendant instituted a new action in the Court of Appeals for a writ of habeas corpus. An Assistant Attorney General, without adequate investigation of either the facts or the law, appeared in the Court of Appeals and consented to the allowance of the writ. As a result the Court of Appeals then allowed the writ unaware of the fact that the judgment was being entered for the petitioner whose conviction this same Court of Appeals had affirmed six years previously. Immediately after the allowance of the writ, the Assistant Attorney General made further investigation and conferred with his superiors. According to the evidence, he was advised by them to file an application for a rehearing in order to afford the Court of Appeals an opportunity to correct its mistake. An application for a rehearing was in fact prepared for that purpose, but it was not filed. Nor was an appeal perfected to this court in order to obtain a review of the judgment of the Court of Appeals.

Subsequently the judge who is the respondent in the instant prohibition case announced that he would proceed to grant the motion for a new trial which had been overruled six years before. He further stated that he would proceed to try the defendant a second time although the defendant had been convicted in his first trial, and that conviction had been affirmed six years previously and still is in full force and effect, and although the journal entry of the Court of Appeals in the habeas corpus action makes no mention of a remand to the Court of Common Pleas or any mention of further consideration of the motion for a new trial.

After the respondent judge announced his intentions, the instant action was instituted in this court to prohibit the respondent from proceeding to take the indicated course. Should the respondent judge be so prohibited for the reason that the Court of Appeals exceeded its jurisdiction in allowing the writ of habeas corpus?

Probably no principle of law has been more consistently followed by this court than that habeas corpus may not be employed as a substitute for the remedy of appeal. Yet that is precisely the attempt made by the petitioner in the habeas corpus action. It should be emphasized that the original judgment of conviction was duly affirmed six years previously, and that that affirmance still is in full force and effect. Orderly procedure would seem to require that its validity be respected and that the Court of Appeals be held without jurisdiction to nullify it collaterally and unknowingly by means of a writ of habeas corpus. Hence, the respondent judge should be prohibited now from proceeding under the void writ and adding further unnecessary confusion to an already unbelievably confused situation.

Matthias and Herbert, JJ., concur in the foregoing dissenting opinion.  