State Ex Rel. Stine v. McCaw

23 N.E.2d 631, 136 Ohio St. 41, 136 Ohio St. (N.S.) 41, 15 Ohio Op. 538, 1939 Ohio LEXIS 237

Opinion

Hart, J.

It was conceded on oral argument that the amended petition of relatrix states facts which, if proven, would entitle her to relief as against the respondents McCaw and Sherwood.

It is apparent, however, from the amended petition that the complaint made and relief sought against the respondents McCaw and Sherwood are not identical with the complaint made and relief sought against the respondents Smith and Emmons, and that there is, therefore, a misjoinder of causes of action and of parties respondent. O’Brien et al., Receivers, v. Fitzgerald, 143 N. Y., 377, 38 N. E., 371.

The relatrix seeks to have Elinor Hixenbaugh, who is not a party to this action, ousted from her position through a court order requiring the respondents Smith and Emmons to discontinue her incumbency and to disapprove the payment of her salary. In so doing the relatrix seeks, in effect, an .injunctive remedy to restrain and enjoin these respondents from recognizing the so-called incumbent. No specific official position is here involved, and the relatrix can be interested only in her own restoration to her former position.

This court has no original jurisdiction in injunction and the amended petition shows no cause of action in mandamus against the respondents Smith and Emmons. St ate, ex rel. Penn Mutl. L. Ins. Co., v. Hahn, 50 Ohio St., 714, 35 N. E., 1052.

The demurrer of the respondents Smith and Emmons to the amended petition is sustained on the ground that it does not state a cause of action against them, and the demurrer of the respondents McCaw and Sherwood is sustained on the ground that there is a misjoinder of parties respondent.

Leave will be granted to relatrix to plead further.

Demurrers sustained.

Weygandt, O. J., Day, Zimmerman and Matthias, JJ., concur. Williams, J., concurs in the judgment. Myers, J., not participating.