State ex rel. Ballard v. O'Donnell

Alice Robie Resnick,

J dissenting. The majority opinion, in effect, directly controls the discretionary act of the trial judge. This is impermissible pursuant to R.C. 2731.03. I strongly disagree with the majority when it causes a discretionary decision of the trial judge to be set aside and orders the trial court to enter the judgment which the majority thinks should have been entered.

In this case relator filed a motion for relief from judgment on August 25, 1988. However, the record before us is sparse and confusing. If this motion was not ruled upon by the trial court, *185then I would agree that mandamus would be appropriate to require the trial court to act. Mandamus, however, cannot be used to obtain the reversal of an adverse ruling where the actual decision as to whether relief should be granted or denied has already been made by the trial judge. Since that decision was a discretionary act of the trial court, mandamus will not lie. State, ex rel. Baerkircher, v. Radcliffe (1987), 31 Ohio St. 3d 14, 31 OBR 12, 508 N.E. 2d 150; State, ex rel. Sawyer, v. O’Connor (1978), 54 Ohio St. 2d 380, 8 O.O. 3d 393, 377 N.E. 2d 494.

It is well-settled that mandamus will not issue to compel a court to rule in a certain way. A writ of mandamus may issue to compel the exercise of judicial discretion but not to control it. From the record it would appear that respondent did in fact rule upon relator’s motion for relief from judgment on November 3, 1988 when said motion was denied. Hence, relator had an adequate remedy at law by way of appeal. It is difficult to discern from the record before us whether relator did in fact exercise his right to appeal. It is clear that another party similarly situated to relator did in fact appeal the adverse ruling on that party’s motion for relief from judgment.

Based upon the foregoing I would follow the opinion of the appellate court and deny the writ as an attempt to control the exercise of judicial discretion.