State ex rel. B. F. Goodrich Chemical Div. v. Griffin

Per . Curiam. The ease most nearly apposite to the instant cause, and relied upon by appellant, is State, ex rel. Allied Chemical Corp., v. Earhart (1974), 37 Ohio St. 2d 153, in which this court reiterated the three criteria necessary for issuance of a writ of prohibition as stated in State, ex rel. Northern Ohio. Tel. Co., v. Winter (1970), 23 Ohio St. 2d 6, 8. Allied Chemical involved, among other matters, a wrongful death action against a complying employer, in which the.trial court had overruled .Allied Chemical’s motion to dismiss for failure to state a claim upon which re-relief could be granted. This court found that the lower court was- in error in entertaining the suit and, also stated, at. page 156: .«« * * Northern Ohio Telephone Co. requires that. Refusal of the writ will result in injury for which there is no adequate- remedy.’ Although we have generally held that [61] prohibition, may not be used as a substitute for appeal, a recognized exception to this rule is found in State, ex rel. Adams, v. Gusweiler (1972), 30 Ohio St. 2d 326, 329, 285 N. E. 2d 22, as follows: “ Tf an inferior court is without jurisdiction whatsoever to act, the availability or adequacy of a remedy of appeal to prevent the resulting injustice is immaterial to the exercise of supervisory jurisdiction by a superior court to prevent usurpation of jurisdiction by an inferior court.’ ” This cause' however, is distinguishable from A llied Chemical, supra, in that the respondent judge herein has stated that he is permitting discovery in order that he might determine if he has jurisdiction. This court will not assume that the trial court will make an incorrect decision concerning this threshold question. ■ Accordingly, the judgment of the Court of Appeals dismissing the complaint in prohibition is affirmed. ..Judgment affirmed. Celebrezze,. C.. J., Herbert, W. Brown, Sweeney and Locher, JJ;, concur. P. Brown and Holmes, JJ., dissent.