COURT OF APPEALS OF OHIO, EIGHTH DISTRICT
                       COUNTY OF CUYAHOGA
                            No. 79187
STATE EX REL. FRANKLIN   :
MORTON                   :
          Relator        :
                         :
          -vs-           :         ORIGINAL ACTION
                         :
JUDGE THOMAS J. POKORNY  :
                         :
          Respondent     :
DATE OF JOURNALIZATION:            MARCH 1, 2001
CHARACTER OF PROCEEDING:           WRIT OF MANDAMUS
JUDGMENT:                          WRIT DISMISSED.
                                   RELATOR'S COSTS.
                                   Motion No. 25451
APPEARANCES:
For Relator:                       FRANKLIN MORTON, JR.
                                   (P00079187R)
                                   P.O. Box 5600
                                   Cuyahoga County Jail
                                   Cleveland, OH 44101
For Respondent:                    WILLIAM D. MASON (#0037540)
                                   Cuyahoga County Prosecutor
                                   9th Floor, Justice Center
                                   1200 Ontario Street
                                   Cleveland, OH 44115
JUDGE TERRENCE O'DONNELL:
     On February 5, 2001,  the relator, Thomas Morton,  commenced
this mandamus action against the respondent, Judge Thomas Porkorny,
to compel the judge to rule on a motion to dismiss the indictment
                               -2-
against him for  lack of a speedy  trial in the underlying  case,
State of Ohio v. Thomas Morton, Cuyahoga County Common Pleas Court
Case No. Cr. 398956. For the following reasons, the writ is hereby
dismissed, sua sponte.
     The requisites  for mandamus are  well established: (1)  the
relator must have a clear legal right to the requested relief, (2)
the  respondent must  have  a clear  legal  duty to  perform  the
requested relief and (3) there must be no adequate remedy at law.
Although a  writ of  mandamus  may require  a judge  to  exercise
judgment or  to discharge  a duty,  it may  not control  judicial
discretion, even if such discretion is grossly abused.  State  ex
rel. Ney v. Niehaus (1987), 33 Ohio St.3d 118, 515 N.E.2d 914.
     A review of the docket in the underlying case (a copy of which
is attached  hereto) reveals that  the court  assigned Morton  on
December 1, 2000, and that he filed a pro se motion to dismiss on
January 5, 2001.  This is the oldest, but not the only, motion to
dismiss filed in the case. C.P.Sup.R. 40(A) provides that motions
shall be ruled upon within one hundred twenty days from the date of
filing.  Thus, a  complaint in mandamus to  compel a ruling on  a
motion to dismiss which has been pending approximately forty days
is premature.  See State ex rel. Rodgers v. Cuyahoga County Court
of Common Pleas  (1992), 83 Ohio App.3d  684, 615 N.E.2d 689  and
State ex rel. Byrd v.  Fuerst (July 12, 1991), Cuyahoga App.  No.
61985, unreported.
     Additionally,careful review of the docket indicates that the
                               -3-
judge overruled the motion to dismiss on January 31, 20011,  and,
therefore, this action to obtain a writ of mandamus is moot,  The
judge here has fulfilled his duty to rule on the motion and  Morton
has received his requested relief.
     Moreover, the  petition itself  is defective  because it  is
improperly captioned.  R.C. 2731.04 requires that an  application
for a  writ of mandamus  must be by petition, in the name of  the
state on the relation of the  person applying.   This failure  to
properly caption  a  mandamus action  is sufficient  grounds  for
denying the writ and dismissing the petition.  Maloney v. Court of
Common Pleas of Allen County (1962), 173 Ohio St. 226, 181 N.E.2d
270. Morton also failed to support his complaint with an affidavit
 specifying the details of the  claim  as required by Local  Rule
45(B)(1)(a).  State ex rel. Wilson v. Calabrese (Jan. 18,  1996),
Cuyahoga App.  No. 70077, unreported and  State ex rel. Smith  v.
McMonagle (July 17, 1996), Cuyahoga App. No. 70899, unreported.
     Accordingly, the court dismisses this application for a  writ.
Costs assessed against the relator.  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).
PATRICIA A. BLACKMON, P.J. and
ANNE L. KILBANE, J. CONCUR
                                       TERRENCE O'DONNELL
     1 The court notes that Morton dated the certificate of
service for this mandamus complaint January 30, 2001.
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                                             JUDGE
 
.