*301OPINION
By THE COURTOn this state of facts the main question that arises is as to the authority of J. D. Sears to act as special prosecuting attorney on the hearing of said motion to enter a nolle prosequi of said indictment in the Common Pleas Court, and as to his authority to prosecute error on behalf of the State of Ohio from the order granting said motion.
Sec 2912, GC, provides for filling a vacancy in the office of the prosecuting attorney in case of sickness or disability. §2412, GC, provides for the employment of temporary legal counsel to assist the prosecuting attorney. §13439-15, GC, provides for the appointment of an assistant to the prosecuting attorney in the trial of a pending case, where the court is of the opinion that the public interest requires it. None of the sections referred to makes provision for the appointment of a special prosecuting attorney to act in place of the prosecuting attorney when the prosecuting attorney may be disqualified by reason of the fact of either his previous or contemporaneous representation of a defendant against whom an indictment is pending in the court of Common Pleas of the county for which he is prosecuting attorney, and consequently the authority for such appointment rests in the inherent powers of the court.
In the case of State ex Henderson, 123 Oh St 474, it is held that the Court of Common Pleas has inherent power to appoint a special prosecuting attorney under circumstances similar to the circumstances mentioned. But it is further held that unless such appointment is made after notice to the prosecuting attorney and after giving him an opportunity to be heard, such appointment is wholly void. In the case at bar, as shown by the record, the prosecuting attorney was neither notified nor given opportunity to be heard at the time such appointment was made and the appointment of the special prosecutor was therefore void insofar as it purports to be an appointment of a special prosecutor to the exclusion of the prosecuting attorney. The appointment, if effective, operated only as an appointment of an attorney to assist the prosecuting attorney, under the provisions of §13439-15 GC. As the only power that could be conferred on Sears by such appointment was power to assist Schwenck as prosecuting attorney, such appointment did not in any way exclude Schwenck as prosecuting attorney from exercising his full statutory power and he was not in any manner superceded by nor displaced by such appointee.
Under the provisions of §13437-32 GC, the power of a prosecuting attorney to enter a nolle prosequi is limited only by the provision that such nolle prosequi shall not be entered without leave of court, on good cause shown, in open court. This being the ease, the Common Pleas Court had jurisdiction to entertain the motion of Schwenck as prosecuting attorney to enter a nolle prosequi in said cause, and to grant said motion. And as Sears at the most had authority only to assist the prosecutor in said cause, he was wholly without authority to act on behalf of the State in opposing the granting of the motion made by the prosecuting attorney on behalf of the State to enter a nolle prosequi of said indictment, or to prosecute error from the order granting the same. The petition in error will therefore be dismissed at costs of plaintiff in error.
KLINGER and GUERNSEY, JJ, concur, CROW, J, concurs in the judgment of affirmance.