State Ex Rel. Tobin v. Sweeney

41 N.E.2d 701, 139 Ohio St. 625, 139 Ohio St. (N.S.) 625, 23 Ohio Op. 118, 1942 Ohio LEXIS 571

Opinion

In cause No. 29082, Patrick Tobin filed in this court a petition for a writ of mandamus to compel the respondent to appoint him as a member of the Board of Elections of Summit county for the four-year term commencing March 1, 1942.

In cause No. 29102, Julius Kohler and other members of the Democratic Executive Committee of that county seek from this court a writ of mandamus compelling the respondent to appoint Tobin to the office aforesaid.

The respondent filed a demurrer to each petition. Subsequently the respondent filed motions to dismiss both petitions for the reasons that Tobin died after the proceedings were commenced; that his right of action, being personal to him, does not survive; that his action cannot proceed in the name of his personal representative; and that it is impossible to grant the relief sought in either proceeding.

Both of the present proceedings abated with the death of Tobin and they are therefore dismissed upon the reasoning contained in the opinion in State, ex rel. Ahrens, v. City of Cleveland, 133 Ohio St. 423, 14 N. E. (2d), 351.

Dismissed.

Weygandt, C. J., Turner, Williams, Matthias, Hart and Zimmerman, JJ., concur. Bettman, J., not participating.