Nash v. Donnelly, 90462 (2-1-2008) , 2008 Ohio 442 ( 2008 )

JOURNAL ENTRY AND OPINION {¶ 1} Relator, Timothy M. Nash, requests that this court compel respondent judge to rule on the motion for new trial filed by Nash inState v. Nash, Cuyahoga County Court of Common Pleas Case No. CR-490706 on June 12, 2007. Nash refers to his complaint as being in habeas corpus. Yet, Nash is requesting a ruling on a motion not immediate release from custody. The nature of the relief which Nash requests is clearly that which is appropriate for mandamus. We will, therefore, treat this action as one in mandamus. See, e.g., State ex rel. Mason v.Floyd, Cuyahoga App. No. 89480, 2007-Ohio-2368, at ¶ 4.

{¶ 2} Respondent has filed a motion to dismiss attached to which is a copy of a journal entry issued by respondent and received for filing by the clerk on November 29, 2007 in which respondent denied the motion for new trial. Relator has not opposed the motion. Respondent argues that this action in mandamus is, therefore, moot. We agree.

{¶ 3} Nash "also failed to include the address of the parties in the caption of the complaint as required by Civil Rule 10 (A). This may also be grounds for dismissing the action. State ex rel. Sherrills v.State (2001), 91 Ohio St.3d 133, 742 N.E.2d 651." State ex rel. Hall v.Calabrese (Aug. 16, 2001), Cuyahoga App. No. 79810, at 2.

{¶ 4} Accordingly, respondent's motion to dismiss is granted. Relator to pay costs. The clerk is directed to serve upon the parties notice of this judgment and its date of entry upon the journal. Civ.R. 58(B).

Complaint dismissed.

FRANK D. CELEBREZZE, JR., P.J., and MELODY J. STEWART, J., CONCUR