.]
COURT OF APPEALS
LICKING COUNTY, OHIO
FIFTH APPELLATE DISTRICT
DANIEL L. MONK JUDGES:
Hon. William B. Hoffman, P.J.
Relator 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 KENNETH W. OSWALT
Inmate No. A646845 Licking County Prosecutor
Chillicothe Correctional Institution
P.O. Box 5500 By: ANTHONY W. STOCCO
15802 State Route104 N. Assistant Prosecuting Attorney
Chillicothe, Ohio 45601 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),
. 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,
(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,
(Ohio,2000).
Licking County, Case No. 13-CA-116 3
{¶4} 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
