Gannon v. Gallagher

60 N.E.2d 660, 145 Ohio St. 170, 145 Ohio St. (N.S.) 170, 30 Ohio Op. 351, 1945 Ohio LEXIS 405

• Court: Ohio Supreme Court
• Decided: April 18, 1945
• Docket: 30202
• Status: Published

Opinion

By the Court.

The mandamus action was not instituted in conformity with the provision of Section 12286, General Code, that “the application for the writ must be by petition, in the name of the state on the relation of the person applying * *

Appellant pleaded the legal conclusion that he had no adequate remedy at law, which allegation was not admitted by the demurrer.

Section 12287, General Code, provides that “the writ must not be issued in a case where there is a plain and adequate remedy in the ordinary course of the law.”

From the briefs of counsel it appears that after the mayor demoted appellant to a patrolman, appeal was taken to the civil service commission which affirmed the action of the mayor; that an appeal was then taken to the Common Pleas Court which also affirmed; and that subsequently a motion to certify the record was overruled by this court.

The appellant had an adequate remedy at law. He availed himself of that remedy and was not entitled to relitigate the same questions by means of an action for the extraordinary writ of mandamus.

Judgment affirmed.

Weygandt, C. J., Zimmerman, Bell, Williams, Turner, Matthias and Hart, JJ., concur.