State ex rel. Mastracci v. Rose 79 Ohio App. 556

Miller, J.

This is an action for a writ of prohibition to enjoin two of the judges of the Court of Common Pleas of Franklin county from hearing a proceeding in contempt against the relator for the failure to pay temporary alimony in compliance with a previous court order. The instant action is based upon the contention that the pleadings in the action in which the alimony was awarded show that the parties to such action were living and cohabiting together at the time of the granting of the award; that under such circumstances Section 11994, General Code, does not authorize the granting of temporary alimony; and that the trial court exceeded its jurisdiction.

It is further contended that the relator has ho adequate remedy at law as the award was not a final order from which an appeal could be prosecuted, and that if the award was complied with and payments made, re*557covery could not be had after the prosecution of error from the final order and a reversal, as the beneficiary would have spent the money. The respondents have filed a demurrer to the petition.

It is well settled that a writ of prohibition lies only when the inferior court proposes to exceed its lawful jurisdiction as to the person or the subject matter, or in the enforcement of its rulings in a manner or by a means not entrusted to its judgment or discretion, and! the party seeking the writ is without other adequate-remedy. Prohibition 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. The issuance of the writ would not be justified by an insufficiency of the statement of' a cause of action or by insufficient proof to sustain a. cause of action. Such matters do not go to the jurisdiction of the inferior court, but are rather questions^ of law and fact to be determined in the action there-pending. On application for a writ of prohibition to stay an action of an inferior court, the sole question to be determined is the jurisdiction of that court, and the court in which the writ is sought will not consider any mere error or irregularity occuring in the progress of the case in the inferior court. 2 Spelling on Injunctions and Other Extraordinary Remedies (2: Ed.), 1472, Section 1716; High’s Extraordinary Legal-Remedies (2 Ed.), 603, Section 762; State, ex rel. Nolan, v. ClenDening, 93 Ohio St., 264, 112 N. E., 1029; 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.

Now, did the court have jurisdiction to make an award of temporary alimony under the state of facts 1 The respondents are two judges of the Court of Common Pleas, one of whom is assigned to the Division of Domestic Relations, under Section 1532, General Code. *558The Common Pleas Court is the court of general jurisdiction in Ohio. The Constitution itself confers no jurisdiction whatever upon the Common Pleas Court either in civil or criminal cases. It merely gives that court capacity to receive jurisdiction which shall be fixed by law. Section 4, Article IV, Constitution. Its jurisdiction is therefore statutory. In accordance with this constitutional authority the General Assembly has .conferred upon the Court of Common Pleas original jurisdiction in all civil cases where the sum or matter •in dispute exceeds the exclusive jurisdiction of the justice of the peace. Section 11215, General Code. The •Common Pleas Court being a court of general jurisdiction of all actions, legal and equitable, it has jurisdiction of all actions unless its jurisdiction is taken away ¡by statute. A writ will not be issued prohibiting the Court of Common Pleas from determining its own jurisdiction where jurisdiction of the subject matter of the action has been conferred upon that court by the laws of the state. 11 Ohio Jurisprudence, 832, Section 185, and cases cited thereunder.

In addition to the general powers granted to the Court of Common Pleas, Section 11994, General Code, .authorizes the award of temporary alimony by the .court in the following words:

“* * * the court, or a judge thereof, in vacation, may grant alimony to either of the parties for his or her sustenance and expenses during the suit * *

In the light of those provisions of the General Code, we are of the opinion the respondents were duly authorized to make the temporary alimony award, the correctness of which can only be determined by a reviewing court after the case is finally adjudicated.

The relator calls our attention to the case of State, ex rel. Nolan, v. ClenDening, supra, and relies upon it as authority for the granting of the writ. That case *559differs from the one at bar in that the writ there was directed against the liqnor licensing board of Ohio which had been granted the gwasi-judieial power of trying members of county liquor licensing boards for the violation of certain regulations. The jurisdiction of the state board was limited while in the case at bar the jurisdiction of respondents is general. The writ in the ClenDening case was granted for the reason that the defendant board was without jurisdiction to hear the case.

This court is of the opinion that the respondents were acting within their own jurisdiction in granting the temporary alimony, and that the demurrer should be sustained.

JDemurrer sustained.

Wiseman, P. J., and Hornbeck, J., concur.

(Decided March 31, 1947.)

On Application for rehearing.

By the Court.

This cause is submitted on application for a rehearing for the reason that the court’s attention had not been called to a recent decision by the Supreme Court of Ohio.

We have read the case referred to, which is In re Cattell, 146 Ohio St., 112, 64 N. E. (2d), 416, 164 A. L. R., 312, and we still adhere to our former ruling. That case involved an action for divorce in which a restraining order was granted whereby the husband was enjoined from interfering with the wife’s exclusive use and occupancy of the home. The bond was fixed at $25 and it was allowed to be given by cash deposit with the clerk of court. A violation of the restraining order was charged and the husband was found' guilty of con*560tempt of court and sentenced to five days in prison. A petition for a writ of habeas corpus was filed and the court field that the trial court fiad no authority to prescribe or accept a deposit of money in lieu of the bond required by Section 11882, General Code, that no proper bond having been given the injunction never became operative and the Common Pleas Court acquired no jurisdiction to punish, for there could be no violation if the required bond was not given.

Now, in the instant case, under the same process of reasoning, if the temporary alimony award was a void order, the writ should be allowed, but we do not find .such to be the fact. Section 11994, General Code, authorized the allowance of “alimony to either of the parties for his or her sustenance and expenses 'during the suit.” That provision of the Code vests in the court a discretion to allow temporary alimony and legal expenses to either party, even though the parties ;are living together in the same house, as- alleged in the petition.- There may be still a need on the part of the wife for sustenance money, such as food, clothing, medicine, etc. Shelter does not mean sustenance, but it is included in the term. We are of the' opinion the trial court had jurisdiction to make the award.

The application for a rehearing is denied.

Application denied.

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