
    The State, ex rel. Pengelly, v. McClelland, Judge.
    (No. 3948
    — Decided November 20, 1946.)
    
      Messrs. Binns S Tresemer, for relator.
    
      Mr. John F. Carlisle and Mr. W. B. McLeskey; for respondent.
   By the Court.

This cause is submitted on demurrer by the respondent upon the following grounds, to wit:

1. That the court has no jurisdiction of the subject matter of the action;

2. That the relator has not legal capacity to sue; and

3. That the petition does not state facts sufficient to constitute a cause of action or to legally justify the relief prayed for therein.

• The action is one in mandamus seeking to require this respondent to entertain, hear and determine the cause of Emma Pengelly, Plaintiff, v. Cora I. Thomas, et al., being case No. 55273 on the dockets of the Probate Court of Franklin county, Ohio.

The petition alleges that on September 9, 1946, relator appeared in the open court of the respondent, who is the qualified and acting probate judge of Franklin county, Ohio, .for further proceedings in the above ■stated cause in accordance with mandates theretofore issued to such Probate Court by the Court of Appeals for Franklin county, Ohio, and the- Supreme Court of Ohio; that the Court of Appeals for Franklin county, Ohio, ruled that Section 10501-17, General Code, effective January 1, 1932, “is determinative and grants .jurisdiction to the Probate Court in this matter,” and in its journal entry filed on April 4, 1946, held “that ■said Probate' Court has jurisdiction to vacate on the ...ground of constructive fraud the order confirming the -final account made and entered in said estate on the 2nd day of October 1929, and that to grant the relief prayed for in this proceeding, based on Section 10501-17, General Code, would violate no provision of the Constitution,” and ordered the cause remanded for further proceedings according to law, and further •ordered that a special mandate be sent to the Probate Court of Franklin county, Ohio, to carry the judgment into execution.

The petition alleges further that the Supreme Court ■of Ohio dismissed an appeal as of right, overruled a motion to certify-and ordered a special mandate sent to the Probate Court of Franklin county, Ohio, to carry its judgment into execution; that the respondent probate judge, on September 9, 1946, on motion, rendered .a decision from the bench intimating his intention to rule that the cause No. 55273 should be dismissed for the reason that he did not have jurisdiction under Section 10501-17, General Code, to entertain the action; that the decision from the bench of respondent is arbitrary, capricious and contemptuous of the judgments .and mandates of the. reviewing courts, and unless an alternative writ of mandamus issue from this court, respondent will journalize a dismissal of the cause No. -55273.

It will be noted that the petition does not definitely allege that the respondent refused to carry out the mandate issued by this court, but merely alleges that he “intimated his intention to rule that said cause No. 55273 should be dismissed.” The right to invoke the aid of a court to compel the performance of an official duty as a general rule cannot arise until the officer is in actual default. Mandamus is never granted in anticipation of a supposed omission of duty, however strong the presumption may be that the persons whom it is sought to coerce by the writ will refuse to perform their duty when the proper time arrives. It is, therefore, incumbent upon the relator to show an actual omission on the part of the respondent to perform the act required before the writ may be issued. See 25 Ohio Jurisprudence, 1000, 1001, Section 26.

We are, therefore, of the opinion that this action is prematurely filed and the writ is denied.

Writ denied.

IIornbeok, P. J., Wiseman and Miller, JJ., concur.  