Monk v. Marcelain
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[Cite as Monk v. Marcelain, 2014-Ohio-2131.] COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT DANIEL L. MONK Relator JUDGES: Hon. William B. Hoffman, P.J. Hon. John W. Wise, J. Hon. Craig R. Baldwin, J. -vsCase No. 13-CA-116 JUDGE THOMAS M. MARCELAIN Respondent OPINION CHARACTER OF PROCEEDING: Writ of Procedendo JUDGMENT: Dismissed DATE OF JUDGMENT ENTRY: May 12, 2014 APPEARANCES: For Relator For Respondent DANIEL MONK, PRO SE Inmate No. A646845 Chillicothe Correctional Institution P.O. Box 5500 15802 State Route104 N. Chillicothe, Ohio 45601 KENNETH W. OSWALT Licking County Prosecutor By: ANTHONY W. STOCCO Assistant Prosecuting Attorney 20 South Second Street, Fourth Floor Newark, Ohio 43055 Licking County, Case No. 13-CA-116 2 Hoffman, P.J. {¶1} Relator, Daniel L. Monk, has filed a complaint for Writ of Procedendo. Relator requests Respondent Judge Thomas M. Marcelain be ordered to rule on a motion filed in the trial court on July 23, 2013. On December 18, 2013 Respondent ruled upon the motion. Respondent has filed a motion to dismiss the instant Petition because his ruling upon the motion has made the petition moot. {¶2} To be entitled to a writ of procedendo, a relator must establish a clear legal right to require the court to proceed, a clear legal duty on the part of the court to proceed, and the lack of an adequate remedy in the ordinary course of law. Miley, supra, at 65, citing State ex rel. Sherrills v. Cuyahoga Cty. Court of Common Pleas (1995), 72 Ohio St.3d 461, 462. The Supreme Court has noted, The writ of procedendo is merely an order from a court of superior jurisdiction to one of inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the inferior court as to what that judgment should be. State ex rel. Davey v. Owen, 133 Ohio St. 96, *106, 12 N.E.2d 144, * *149 (1937). {¶3} The Supreme Court has held procedendo will not issue where the requested relief has been obtained, Neither procedendo nor mandamus will compel the performance of a duty that has already been performed. State ex rel. Kreps v. Christiansen, 88 Ohio St.3d 313, 318, 725 N.E.2d 663, 668 (Ohio,2000). Licking County, Case No. 13-CA-116 {¶4} 3 Because Respondent has issued a ruling on Relator s motion, the request for a writ of procedendo has become moot. For this reason, Respondent s Motion to Dismiss is granted. By: Hoffman, P.J. Wise, J. and Baldwin, J. concur
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