#### The State, ex rel. Cash et al., *v.*Rose, Judge.

(Decided May 4, 1939.)

*245*Mr. E. 0. Ricketts,*for relators.

*Messrs. Baldwin & Nolan,*for respondent.

By the Court.

This is an action in which the relators ask that a writ of mandamus issue commanding Clayton W. Rose as judge of the Court of Common Pleas of Franklin county, Ohio, to approve a certain entry which was submitted to the court by the relators and not approved. The entry, without the caption, is:

“By agreement of parties this cause is dismissed without record and all restraining orders theretofore issued are hereby dissolved.

“(Signed) by Lena Cash, plaintiff, and

“Lawrence Cash, defendant.”

The relators having made application for the allowance of the writ, this court ordered that the Common Pleas Court immediately approve the entry or show cause why it had not done so by the 8th day of April, 1939.

On the 7th of April, 1939, the respondent, Judge Rose, filed an answer admitting certain allegations of the petition, among them being that he did not sign the entry. His answer states the reason for not doing so, to the following effect: That on the 11th day of July, 1938, Lena Cash, as plaintiff, represented by Messrs. Baldwin & Nolan, filed a divorce and alimony action against her husband and several other defendants who, it was alleged, had money in their possession due and owing to her husband; that at the time the petition was filed a motion was also filed asking that the defendant be required to pay to the plaintiff a reasonable amount for the support of the plaintiff and minor children during the pendency of the action, and the defendant also be required to pay a further amount as expense money for plaintiff’s attorneys; and that *246the. court on August 18 made, among other orders, the following:

“It is further ordered that the defendant pay to the plaintiff for her attorneys, Baldwin *&*Nolan the sum of $50 as expense money, said amount to be paid forthwith through Baldwin & Nolan, attorneys.”

Respondent further states that this order was made on the application of the plaintiff and entered long previous to the reconciliation of the parties and the submission of the dismissal order and that this order to pay attorneys ’ fees has not been complied with.

Respondent further alleges that upon the filing of the original petition for divorce a restraining order was issued against various defendants restraining them from paying to defendant (the husband) any money due or owing to him; and that among the defendants was The Prudential Life Insurance Company of America which filed an answer stating that it held in its possession the sum of $191 due and owing to the defendant and that this money was still in the hands of the insurance company.

It is further stated that by reason of the failure of the defendant to abide by the court’s orders as regards expense money the attorneys for the plaintiff refused to approve the order submitted, dismissing the action and dissolving the restraining order, and objected to the action being dismissed. For a further answer respondent says that the entry of dismissal does not provide for the payment of costs; that previous to the filing of the mandamus action plaintiff’s attorneys filed a motion asking for an order requiring the insurance company to pay them the sum of $50; that after the submission of the order of dismissal the plaintiff filed a motion asking that the motion of the attorneys be stricken from the files; and that that motion has not been decided. The other allegations are denied. Relators demur to the answer because it does not state facts sufficient to constitute a defense. *247Respondent moves the court for an order for judgment on the pleadings, dismissing the petition and disallowing the writ of mandamus.

Summarizing the whole matter, Mrs. Cash sued her husband for divorce and in the proceedings asked for an order of the court allowing her certain sums for the support of her children and to pay her attorneys’ fees. Such an order was made. One defendant answered admitting that it had $191 in its possession due to the defendant. Apparently nothing was done by the plaintiff to sequester any part of this amount and apply it to the allowance of the $50 attorneys’ fees, except the filing of the motion above noted.

The first question raised by the respondent is upon the motion for judgment on the pleadings. The question as to the right of the plaintiff to a writ of mandamus is raised.

Section 12283, General Code, defines the writ:

“Mandamus is a writ issued, in the name of the state, to an inferior tribunal, a corporation, hoard, or person, commanding the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station.”

Section 12285, General Code, provides that:

“The writ may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, but it cannot control judicial discretion.”

The cases defining the rights of parties in mandamus proceedings are multitudinous.

“Mandamus will lie to compel the performance of an act which is clearly shown to he especially enjoined by law as a duty resulting from an office, trust or station. But it will not lie to control discretion * # *Bd. of Edn. of Sycamore*v. *State, ex rel. Wickham,*80 Ohio St., 133, 88 N. E., 412.

When a suit in mandamus seeks to require a public officer to perform a duty imposed by law the relator *248has no adequate remedy unless a legal remedy, other than mandamus, will require the officer to perform the specific act which the law requires the officer to do. *State, ex rel. Merydith Construction Co.,*v. *Dean, Aud.,*95 Ohio St., 108, at page 123, 116 N. E., 37.

Mandamus will not lie to control judicial discretion in the judicial determination of an issue by an inferior court, but will lie to compel the exercise of such discretion and the exercise of judicial functions conferred by law upon such inferior tribunals. *State, ex rel. Tailford,*v. *Bristline, Judge,*96 Ohio St., 581, 119 N. E., 138.

Mandamus is a writ commanding a party officially to perform an act which the law enjoins as a duty resulting from an office and will issue only when it is clearly shown that there is a plain dereliction of such duty. *State, ex rel. Van Harlingen,*v. *Bd. of Edn.,*104 Ohio St., 360, 136 N. E., 196.

In order to obtain the relief sought, the relator must disclose a case wherein no discretion is imposed upon the respondents in the performance of the duty. If discretion is imposed, such can not be controlled by a writ of mandamus. And plain dereliction of duty must be established by relator. *State, ex rel. Weaver,*v. *Bd. of Trustees of Ohio State University,*126 Ohio St., 290, 185 N. E., 196.

Mandamus is an extraordinary writ and will not lie unless the claimant can establish a clear legal right thereto. *State, ex rel. Papadopoulos,*v. *Industrial Commission,*130 Ohio St., 77, at page 81, 196 N. E., 780. See also *State, ex rel. Kohn,*v. *Manton, Judge,*11 Ohio App., 364.

The initial questions then are whether the writ issued requires the respondent to perform a duty clearly imposed upon him by law and whether the relator has no other adequate remedy. It is suggested that in the case at bar the plaintiff in the divorce action should *249appeal from the order of the court and that such proceedings would afford her an adequate remedy.

It occurs to us that by the machinery of the court, long established and consistently followed, a ministerial duty was imposed upon the court to approve an entry in order that the rights of the litigant might be properly spread upon the journal. The question of course immediately follows as to whether this plaintiff in the divorce case has a right to have the entry approved and whether such approval is purely ministerial or whether it involves “judicial discretion.” If it involves judicial discretion the writ may not be allowed to compel its exercise by the judge.

Section 11586, General Code, provides:

“An action may be dismissed without prejudice to a future action:

“1. By the plaintiff, before its final submission to the jury, or to the court, when the trial is by the court.”

Paragraphs 2, 3, 4 and 5 of that section relate to dismissals by the court. Paragraph 6 relates to a dismissal by the plaintiff in vacation “on payment of costs” in which event the clerk shall make the entry whereupon the dismissal shall take effect. In all other cases the decision must be on the merits upon the trial of the action. It will at once be observed that unde,r at least two of these paragraphs, to wit, Nos. 1 and 6, the action may be dismissed by the plaintiff. Paragraph No. 1 says nothing about the costs. In paragraph No. 6, where the court is in vacation, the dismissal is made by the clerk upon payment of costs. In the instant case the court was not in vacation.

We arrive at the conclusion that under the statute providing for dismissals the action may be dismissed-without prejudice to a new action by the pláintiff. The reason for the court’s refusal to endorse the entry was the disregard of the order that the defendant pay to the plaintiff or her attorneys the sum of $50. As *250to this order and its disobedience, it may be pointed out that it is addressed to the defendant, requiring him to pay the plaintiff the expense money, whereas the dismissal is sought in the name of both plaintiff and defendant. Whatever the defendant husband may have done in failing to pay, that dereliction did not apply to' the plaintiff because she did not have any money with which to pay and was not ordered to pay. It does not appear from the pleadings that any money was paid by the defendant to the plaintiff for the purpose of paying her attorneys and that she has refused or neglected to use it for that purpose. For all that appears in the pleadings the plaintiff never has had any money from her husband with which to discharge the obligation to her attorneys. There was no showing of contumaciousness on the part of the plaintiff.

This leads us in passing to say that in our judgment it would frequently work a hardship if the failure to obey an order made by the court for the defendant to pay money to the plaintiff’s attorneys, or even for the plaintiff to pay money to her attorneys, were made the basis for a refusal to permit the parties to compromise their differences and to get out of court. In the present case it appears that there are children. The care of children by the united family is a matter that appeals more strongly to us than the payment of attorneys’ fees, especially where the attorneys have had an opportunity to collect from a responsible party, who admits that he owed the defendant money, but have apparently neglected or at least delayed the collection of money from that source.

As judges who have formerly been practicing attorneys, we are sympathetic with the attorney who has done valuable legal service and then is deprived of his proper compensation by the parties compromising their differences, leaving the attorney in the lurch so far as his fees are concerned. However, we must decide the case according to the law and not according *251to our natural feeling of comradeship toward attorneys.

As before stated, the plaintiff has violated no order of the court and, we think, has a right to exercise the discretion given her under Section 11586, General Code, to dismiss her action before its final submission to the court, unless some rights have intervened by virtue of the orders of the court, entered before the attempted dismissal, superior to the statutory right of the plaintiff to dismiss her action.

We have examined cases cited in Section 11586, General Code, and find none directly controlling although it is held in *C., H. V. & T. Ry. Co.*v. *Burke,*54 Ohio St., 98, 43 N. E., 282, 32 L. R. A., 329, that the only dismissal of an action which a plaintiff has power to make without leave of the court is a dismissal without prejudice, which feature is not involved. We have had called to our attention the cases of *Black*v. *Stewart,*28 O. C. A., 433, 30 C. D., 277; *DeWitt*v. *DeWitt,*67 Ohio St., 340, 66 N. E., 136; *Yoder*v. *Yoder,*105 Wash., 491, 178 P., 474; *Bell*v. *Bell,*214 Ala., 573, 108 So., 375; and also 19 Corpus Juris, 233, Section 548. From an examination of these authorities and from a consideration of the law as we deem it applicable, we arrive at the conclusion that the court below had no right to deny to the plaintiff the right to dismiss the case as provided by the statute; that the duty of the court is ministerial only in approving the entry; and that the action in mandamus will lie to compel the court to perform its ministerial duty.

The motion for judgment is overruled and the demurrer to the answer sustained. Ten days leave to file an amended answer is given and if not filed, the writ will be made permanent.

*Judgment accordingly.*

Hornbeck, P. J., Geiger and Barnes, J., concur.