Pegan v. Crawmer

[This opinion has been published in Ohio Official Reports at 

73 Ohio St.3d 607

.]




                    PEGAN, APPELLANT v. CRAWMER, APPELLEE.
                    [Cite as Pegan v. Crawmer, 

1995-Ohio-175

.]
Habeas corpus—R.C. Chapter 2725 prescribes a basic, summary procedure for
         bringing a habeas corpus action.
        (No. 94-2373—Submitted May 9, 1995—Decided September 6, 1995.)
    APPEAL from the Court of Appeals for Licking County, No. 94-CA-00106.
                                  __________________
         {¶ 1} On October 19, 1994, appellant, Stella M. Pegan, filed a petition for
a writ of habeas corpus in the court of appeals, alleging that she was entitled to
custody of Candi Pegan, age five, under a 1990 judgment entry of the Juvenile
Division of the Court of Common Pleas of Licking County, and that the child’s
father, appellee, Ronald L. Crawmer, was wrongly exercising custody under an
October 1994 order of the Domestic Relations Division of the Court of Common
Pleas of Licking County. Appellant alleged that the domestic relations division had
no jurisdiction to award appellee temporary custody since it had dismissed
appellee’s motion for failure to file an affidavit required by R.C. 3109.27.
         {¶ 2} On October 28, 1994, the court of appeals “denied” the “complaint
for Habeas Corpus * * * for * * * failure to certify that a copy of same was served
upon the named defendant.” On October 31, 1994, appellee, who apparently had
actual notice of the habeas petition, filed a motion to dismiss, attaching evidence
that he had refiled his motion with a proper affidavit in the domestic relations
division, and on that basis the court had awarded him temporary custody. However,
this evidence was never before the court of appeals, which had already denied the
writ.
         {¶ 3} Appellant appealed to this court as of right, alleging that the court of
appeals inappropriately applied App. R. 13 (D) (papers filed shall contain proof of
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service) to her petition. She claims Civ. R. 4 (A) (clerk to serve summons and copy
of complaint) is applicable, not App. R. 13 (D). Appellee has filed no brief.
                               __________________
        Central Ohio Legal Aid Society, Inc., and Patricia L. Moore, for appellant.
                               __________________
        Per Curiam.
        {¶ 4} We reverse the judgment of the court of appeals for the following
reasons.
        {¶ 5} App. R. 1(A) states:
        “These rules govern procedure in appeals to courts of appeals from the trial
courts of record in Ohio.” (Emphasis added.)
        {¶ 6} Therefore, App. R. 13 (D) could not have been applicable to this
original action in the court of appeals.
        {¶ 7} Appellant urges that the clerk should have been required to serve
copies of the petition with summons under Civ. R. 4 (A). However, Civ. R. 1(A)
states in part:
        “These rules prescribe the procedure to be followed in all courts of this state
in the exercise of civil jurisdiction at law or in equity, with the exceptions stated in
subdivision (C) of this rule.” (Emphasis added.)
        {¶ 8} Civ. R. 1 (C) states in part:
        “These rules, to the extent they would by their nature be clearly
inapplicable, shall not apply to procedure * * * in all other special statutory
proceedings * * *.”
        {¶ 9} Courts of appeals have differed in their application of the Civil Rules
to habeas corpus actions. In In re Terry (1988), 

51 Ohio App. 3d 133, 137

, 

544 N.E.2d 1365

, 1369, the Court of Appeals for Marion County held that “[t]he Civil
Rules are inapplicable” in a habeas corpus proceeding. On the other hand, in
Harshaw v. Farrell (1977), 

55 Ohio App. 2d 246

, 9 O.O. 3d 387, 

389 N.E.2d 749

,



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                                January Term, 1995




the Court of Appeals for Franklin County held that “Civ. R. 23, pertaining to class
actions, may, under proper conditions, be applicable           to a habeas corpus
proceeding.” Similarly, in Reynolds v. Ross Cty. Children’s Serv. Agency (Jan. 17,
1979), Ross App. No. 704, unreported, the Court of Appeals for Ross County held
that Civ. R. 4.1 (2) (plaintiff’s written request for personal service) applies to
habeas cases; and in Turner v. Morris (Apr. 25, 1991), Ross App. No. 1702,
unreported, the same court of appeals held that some discovery rules may apply in
habeas actions.
       {¶ 10} Therefore, all Civil Rules are not “clearly inapplicable” in habeas
actions “by their nature.” However, whatever the applicability of a particular Civil
Rule, it is evident that R.C. Chapter 2725 prescribes a basic, summary procedure
for bringing a habeas action. First, application is by petition that contains certain
information. R.C. 2725.04. Then, if the court decides that the petition states a
facially valid claim, it must allow the writ. R.C. 2725.06. Conversely, if the
petition states a claim for which habeas corpus relief cannot be granted, the court
should not allow the writ and should dismiss the petition. If the court allows the
writ, the clerk issues it, and service may be by a sheriff or other person deputed by
the court. R.C. 2725.07; 2725.11. Issuing the writ means only that a return is
ordered and a hearing will be held. Hammond v. Dallman (1992), 

63 Ohio St. 3d 666, 668

, 

590 N.E.2d 744, 746, fn. 7

.
       {¶ 11} In the instant case, the court of appeals had before it a petition
alleging unlawful custody of a minor under a void court order. The action should
have proceeded under R.C. Chapter 2725 and not have been dismissed for failure
to serve summons on the other party pursuant to App. R. 13 (D). Accordingly, we
reverse the judgment of the court of appeals and remand the cause to determine
whether the writ should be allowed pursuant to R.C. 2725.06. If the court of appeals
finds that the writ should be allowed then it should order a return of the writ, as
prescribed in R.C. Chapter 2725.




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                                                           Judgment reversed
                                                         and cause remanded.
          MOYER, C.J., WRIGHT, RESNICK, F.E. SWEENEY, PFEIFER and COOK, JJ.,
concur.
          DOUGLAS, J., concurs in judgment only.
                               __________________




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