State Ex Rel. Village of Newton Falls v. McVicker

23 N.E.2d 630, 136 Ohio St. 40, 136 Ohio St. (N.S.) 40, 15 Ohio Op. 537, 1939 Ohio LEXIS 236

Opinion

This day this cause coming on to be heard by the court upon the petition of the plaintiff for a writ of prohibition, as more specifically set forth therein, and it appearing to the court that heretofore, an alternative writ was issued returnable to this court on the 1st day of April, 1939, and that notice was properly served on the defendants by the sheriff of Trumbull county, Ohio, and that the defendants have failed to answer or demur to said petition and have in open court stated that they do not intend to file any pleadings herein, the allegations of the petition are hereby taken to be true.

The court further find that the issues in cause No. 44010 filed in the Court of Common Pleas of Trumbull county, Ohio, on March 10, 1939, in which The Ohio Public Service Company is plaintiff, and the village of Newton Falls, Ohio, is defendant, are res judicata, and that said action is frivolous and vexatious litigation.

With their consent, it is ordered, adjudged and decreed that the defendants, Honorable Dewey B. Mc-Vicker and Honorable Lynn B. Griffith, stay all proceedings in case No. 44010 pending in the Court of Common Pleas of Trumbull county, Ohio, wherein The Ohio Public Service Company is plaintiff, and the village of Newton Falls, its mayor, council and board of trustees of public affairs are defendants; and it is further ordered, adjudged and decreed that a writ of prohibition issue against the defendants prohibiting them and each of them from any further hearing or further adjudication of said case.

It further appearing to the court under the circumstances herein that it would be unjust that the plaintiff recover from the defendants its costs herein expended, it is hereby ordered that the costs herein taxed be paid by the plaintiff herein.

Writ allowed.

Weygandt, C. J., Day, Zimmerman, Myers and' Matthias, JJ., concur. Hart, J., not participating.