
    The State, ex rel. Kriss, v. Richards et al., Judges of the Court of Appeals.
    
      Writ of prohibition — Scope and purpose of writ — Jurisdictional questions — Correction of journal by court — Mistake in judgment entry — Limitation for error proceedings — Court of appeals.
    
    (No. 16941
    —Decided May 24, 1921.)
    In Prohibition.
    This is an original action filed in this court, invoking the remedy of prohibition against the court of appeals of the Sixth Appellate District, sitting in the county of Lucas, Ohio.
    The petition avers that defendants, as judges of the court of appeals, rendered a judgment of reversal against relator, Frederick P. Kriss, in a civil proceeding in error pending in said court, and numbered 966 on the docket thereof; that there was no constitutional question involved in the record and that the judgment so rendered was final; that thereafter a motion was filed by relator for the vacation of the judgment of reversal and the dismissal of the cause, upon a claimed want of jurisdiction of the parties and subject-matter; and that the transcript of the docket and journal entries from the trial court showed an inconsistency, or rather a duplication of judgment entries.
    From the narrative allegations of the petition in prohibition it appears that after judgment in the trial court, in favor of the present relator, entered 'March 16, 1920, opposing counsel filed a motion to vacate the entry overruling their motion for a new trial, for the admitted purpose of an extension of time, in order that the court stenographer might complete the bill of exceptions, there being just at that time an unusual demand for the completion of bills of exceptions in other cases; that the trial court on the 31st day of March vacated said former order, but through some mistake, or otherwise, the entry of vacation which was filed failed to vacate the judgment of March 16; that on April 2 the court again overruled the motion for a new trial, and a second time entered up judgment in favor of present relator, the transcript of journal entries thus showing two judgments exactly alike on March 16 and April 2, 1920, in the same cause, against the same party, and in favor of the same party; and that on the 27th day of May, 1920, a petition in error was filed in the court of appeals, which was seventy-two days after the entry of the judgment of March 16, but within ample time after the entry of the judgment of April 2.
    Upon hearing on this petition in error the court of appeals reversed the judgment obtained by this relator, whereupon relator, upon discovery of the facts above set forth, filed his motion asking that the judgment of reversal be vacated.
    Upon hearing of relator’s motion the court of appeals vacated it's judgment, but declined to dismiss the cause and remanded it back to the trial court for such correction as the trial judge might desire to make.
    The petition filed in this court makes the further allegations that the court of appeals was without jurisdiction, by reason of the fact that the petition in error and certified transcript were not filed within seventy days from the entry of judgment of March 16; that no amendment or addition to the transcript could be made after the statutory period, except for correction of clerical error; and that the court of appeals proposes to and will issue its mandate to the trial court for such corrections in the transcript as the trial judge may desire to make, will then consider the said cause upon the amendment or alteration made, and will assume jurisdiction and render its former judgment of reversal in accordance with its former decision.
    It is then claimed that relator will have no remedy after the court of appeals does all these things that the petition assumes it will do.
    The petition closes with the prayer that the court be prohibited from proceeding further in any manner with said cause, other than to dismiss the petition in error.
    
      Messrs. Marshall & Fraser, for relator.
    
      Messrs. Brown, Geddes, Schmettau & Williams, for defendants.
   By the Court.

The remedy invoked is an extraordinary one, to be issued with great caution, and only when the way is quite clear. It is said that the writ of prohibition is a high prerogative writ, to be used with great caution in the furtherance of justice, and only where there is no regular, ordinary, adequate remedy at hand. State, ex rel. Nolan, v. ClenDening et al., 93 Ohio St., 264.

Again, it is held, in Kelley, Judge, v. State, ex rel. Gellner, 94 Ohio St., 331:

“The proper function of the writ of prohibition is to restrain inferior courts and tribunals from exceeding their jurisdiction and to confine them to the exercise of .those powers legally conferred. It is not an appropriate remedy for the correction of errors, and does not lie to prevent an erroneous decision in a case which the court is authorized to adjudicate.”

And, again, the supreme court has announced the law in the case of State, ex rel. Garrison, v. Brough et al., 94 Ohio St, 115:

“The power to award writs of prohibition having been conferred on this court by the constitution, and that instrument having provided that no law shall be passed or rule made whereby any person shall be prevented from invoking the original jurisdiction of this court, the power will always be exercised where it clearly appears that a court or tribunal whose action is sought to be prohibited has no jurisdiction of the cause or is about to exceed its jurisdiction.”

Thus it may be seen that the law in Ohio is rather fully and definitely settled by recent decisions of this court. It remains only to apply the law to this case.

Under the old axiom, the journal of a court of general jurisdiction imports absolute verity. The journal of the court of common pleas shows a judgment entered March 16 and another judgment, identical in terms, on April 2. We are asked in this collateral proceeding to say that the former is binding, and the latter not binding, or mere surplusage, or otherwise non-substantial as a landmark from which time for the filing of a petition in error may begin to run. This we do not find occasion or right for doing. True, there are two judgments where there undoubtedly should be but one, but* the court in which the judgments are found has a well-defined control over its own orders and has a general jurisdiction, which if invoked, could well prevent the existence of more than one. That the court of appeals has jurisdiction of both the subject-matter and the parties, cannot be doubted, if the petition in error was filed within the statutory time. The record shows that it was in time, for from it we find a judgment entry entered and recorded on the 2d day of April. The record is before this court and is controlling.

It may not be assumed what the trial judge will do in respect to correcting the journal, or that he will do anything, and it may not be assumed what the court of appeals may do when the case comes back to it, if it does come back.

The petition states that both courts will act, and further states the nature of the action that will be taken by each, but such allegations are no more than legal conclusions, and cannot weigh against the natural and usual presumption of law that a court will act within and exercise only that jurisdiction with which it is clothed. All these matters are at best only the groundwork of possible error, and, as appears above, the writ of prohibition cannot be em- • ployed as a substitute for review.

The petition is found to be insufficient, the writ is therefore denied, and the cause is dismissed at the costs of relator.

Writ denied.

Marshall, C. J., Johnson, Hough, Wanamaker, Robinson, Jones and Matthias, JJ., concur.  