State ex rel. De Mart v. Gresko

171 Ohio St. (N.S.) 345

• Court: Ohio Supreme Court
• Decided: December 7, 1960
• Docket: No. 36500
• Status: Published

Opinion

Per Curiam.

The first defense of respondent’s answer is without merit. Relator’s right of appeal under Section 143.30, Revised Code, is to have determined the sufficiency of the cause of removal, whereas the instant action is to test the title to the office which relator claims is being usurped by respondent, and to which relator claims title. The parties to the two actions are not the same, and the relief sought is not the same.

As to the second defense, resignations are recognized both by statute and by the city’s code. Relator had a legal right to and did resign as safety-service director on December 29, and his resignation was accepted by the then mayor, the appointing authority, and properly recorded. Relator was then appointed as a member of the civil service commission, effective December 30, and he qualified for the office. On January 1, following, when the new administration took over, there was no vacancy on the civil service commission, and, therefore, the appointment of respondent to the position of member of the commission was of no legal effect.

The judgment of the Court of Appeals is affirmed.

Judgment affirmed.

Weygandt, C. J., Zimmerman, Taft, Matthias, Bell and Herbert, JJ., concur. 0 ’Neill, J., not participating.