State ex rel. Rulison v. Kilgour

8 Ohio N.P. (n.s.) 81

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: January 6, 1909
• Status: Published

Opinion

SWING, J.

This case is submitted to me upon a demurrer of the plaintiff to the second, third, fourth, fifth and sixth defenses in the answer of the defendant to the amended petition of the plaintiff, the ground of the demurrer to each of said defenses being that it does not state facts sufficient in law to constitute a defense.

The second defense is that the prosecuting attorney of ITamil-ton county,. Ohio, is not .authorized by law and has no legal capacity to bring or maintain the action. I am of the opinion that the demurrer to this defense is well taken and should be sustained. If there is a cause of action stated, I think the prosecuting attorney is the proper person to bring it as he has done.

The third defense is that the action was not brought within six years after the cause of action accrued — a plea of the statute of limitations. The Court of Common Pleas of Allen County, Ohio, Mathers, J., in a similar case, The State of Ohio, ex rel Benjamin F. Welty, Prosecuting Attorney of Allen County, Ohio, v. The Ohio National Bank, 7 N. P.—N. S., 43, has held that the six-year limitation applies. I have read the opinion of the court in that ease with care and have further investigated the question, and my conclusion is that the six-year limitation does apply. In view of all the authorities upon the question which I have examined,. I can not be quite sure that there is any limitation. If the amended petition had set forth that the State of Ohio hás a substantial interest I would be inclined to the opinion that there is no limitation, bnt this action purports to be for the benefit of Hamilton county, and there is no allegation in the amended petition that the State of Ohio has an interest in the action, and unless I should take judicial notice of the fact, if it be a fact, the action would seem to be, as alleged in the amended petition, for the benefit of the county only.

Not without some misgiving, I will overrule the demurrer to the. third defense.

The fourth and fifth defenses are also pleas of the statute of limitation- — one the four-year limitation, -the other the one-year limitation; to these two defenses the demurrer is sustained.

The sixth- defense pleads certain judgments formerly rendered against several former treasurers of Hamilton county, Ohio, which judgments, alleged to have been fully satisfied, are pleaded as a bar to this action. Beading the allegations in the amended petition and the .allegations in the sixth defense in the answer together, I am of the opinion that the demurrer to the sixth defense should be overruled. I am of the opinion that if the plaintiff has any right of action against the defendant such a.s is claimed in this ease, the plea in bar to it is well taken. It is also contended in argument that under the law there is no right of action in the plaintiff ,in such -ease as this. This contention, I am of opinion, is sound. But be that as it may, the demurrer to the sixth defense will therefore be overruled.

I have given the most careful attention to the question of law raised'in this case and can not but think that the conclusions I have reached as to the sixth defense are capable of being demonstrated -as correct with almost, if not quite, mathematical certainty but as the discussion of the reasons and numerous authorities on the subject which have been cited to me by counsel in oral argument and learned briefs, and which authorities, together with others which I have carefully examined, would necessarily be voluminous, I content myself with stating the conclusions which I have reached. There are numerous other cases involving the same questions here decided, which were submitted to me upon demurrers, together with the demurrer in this case, and the conclusions above stated will apply to all the cases submitted.