# Smith v. Granville Township Board of Trustees

> Ohio Supreme Court · November 4, 1996 · 77 Ohio St. 3d 1215

URL: https://www.frixlaw.com/law-library/cases/6774740

## Case

- **Full name:** Smith, Agent for Annexation v. Granville Township Board of Trustees
- **Court:** Ohio Supreme Court
- **Decided:** November 4, 1996
- **Citations:** 77 Ohio St. 3d 1215
- **Precedential status:** Published
- **Opinion:** Dissent by Cook
- **Judges:** Cook, Douglas, Moyer, Pfeifer, Resnick, Stratton, Sweeney
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

Cook, J.,
dissenting. Appellants request, for the third time, the court to issue an “other writ” pursuant to R.C. 2503.40. Currently, appellants seek an order directing the Licking County Board of Elections to impound and not count the ballots to the merger issue on the November 5,1996 election ballot.
R.C. 2503.40 authorizes this court to issue, in addition to the original jurisdiction conferred by Section 2, Article IV of the Ohio Constitution, “writs of supersedeas in any case, and other writs not specifically provided for and not prohibited by law, when necessary to enforce the administration of justice.” *1216 Appellants fad to cite to, nor has our independent review revealed, a single case in which this court has granted such relief. Nonetheless, in this unprecedented decision, the majority issues an “other writ” against a non-party as part of a discretionary appeal: Because I believe the court lacks the authority to issue such a writ under these circumstances, I dissent.
Neither the case law cited by appellants, State ex rel. Snyder v. Wheatcraft (1974), 37 Ohio St.2d 53 , 66 O.O.2d 158 , 307 N.E.2d 258 , nor Supreme Court Rules of Practice supports the use of R.C. 2503.40 in a discretionary appeal. Rather, these authorities reveal that the relief sought by appellants is more appropriately pursued as part of a mandamus or other original action.
In Snyder, supra, the court had ordered ballots to an election to be impounded as part of a mandamus action against the board of elections. Extraordinary writs, such as mandamus, are pursued through original actions and are instituted by the filing of a complaint. S.CtPrac.R. X(4). Appellants seek Snyder relief, not through the filing of an original action against the Licking County Board of Elections, but by motion as part of their discretionary appeal from the decision of the Fifth District Court of Appeals.
In addition, the court lacks the authority either to issue a writ against a non-party or to join a party to a discretionary appeal. Joinder pursuant to Civ.R. 19 is not available in an appellate review of a judgment. Civ.R. 1(C)(1). Moreover, the Certificate of Service attached to appellants’ motion does not indicate that the Licking County Board of Elections was served with and is even aware of this motion for an “other writ” against it.
Because I believe this court lacks authority to grant a motion for an R.C. 2503.40 “other writ” as part of a discretionary appeal against a non-party, I would deny the motion.
Stratton, J., concurs in the foregoing dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6774740. Public record. Not legal advice.