Summary
In Board of Health of St. Bernard v. City of St. Bernard, 19 Ohio St.2d 49, 249 N.E.2d 888 (1969), the Ohio Supreme Court reversed a decision denying a motion for voluntary dismissal filed after a journalized judgment against the plaintiff, but the court stressed that the prior judgment mentioned nothing of the merits of the case and contained "only the stipulation of facts."
Summary of this case from Employees Own Federal Credit Union v. City of DefianceOpinion
Nos. 68-706 and 68-713
Decided July 2, 1969.
Dismissal without prejudice — Section 2323.05 (A), Revised Code — Demurrer sustained with leave to plead further — City board of health to be established — Section 3709.05, Revised Code — Appointment and confirmation of members — A state agency — Failure to vote on confirmation of appointees — Not a confirmation.
1. Where a demurrer to a petition is sustained and leave granted to plead further, petitioner has an absolute right, under Section 2323.05(A), Revised Code, to dismiss the action without prejudice within the time given to plead further. ( McGatrick v. Wason, 4 Ohio St. 566, approved and followed.)
2. Section 3709.05, Revised Code, providing in part that "a city health district shall establish a board of health * * * appointed by the mayor and confirmed by the legislative authority * * *," is not in conflict with Section 731.05, Revised Code, since a board of health of a city health district is a state agency. ( State, ex rel. Mower, v. Underwood, 137 Ohio St. 1, approved and followed.)
3. Failure of a legislative authority to vote on confirmation of persons appointed by a mayor to the board of health of a city health district does not amount to confirmation as required in Section 3709.05, Revised Code.
IN QUO WARRANTO.
APPEAL from the Court of Appeals for Hamilton County.
These cases involve identical quo warranto proceedings by relators to oust the respondents from their offices as members of the Board of Health of the City of St. Bernard, Ohio. In case No. 68-713 the petition was filed in the Court of Appeals. In case No. 68-706 the petition was filed in the Supreme Court.
In case No. 68-713, the parties agreed to a stipulation of facts which essentially is as follows:
Relators had been appointed as members of the St. Bernard Board of Health by the Mayor of the city of St. Bernard, and had served as members of the board from one to four years prior to October 3, 1968. Their appointments had never been confirmed by actual vote of the City Council of St. Bernard. On October 3, 1968, the mayor reappointed relators as members of the board and submitted their names to city council, but city council refused to confirm the appointments. Thereupon, the mayor appointed the respondents to fill the balance of the various terms on the board of health, and submitted their names to council for confirmation. The council, by a majority vote, confirmed the appointments of respondents and they have served in that position until the filing of this suit and restraining order.
Section 159.03 of the Codified Ordinances of the City of St. Bernard, which is consistent with Section 3709.05, Revised Code, provides that "All appointments of members appointed to serve as members of the board of health shall be certified or transmitted to the council by the mayor immediately after making the appointments with the request that the same be confirmed by council * * *. No appointment as provided herein by the mayor shall be valid unless confirmed by council."
Relators allege in their petition that their removal from office on October 3, 1968, as well as the appointment of respondents was unlawful. Relators prayed that respondents be required to show by what warrant they hold office and that they be ousted from office and relators restored to their positions. Respondents demurred to the petition.
The Court of Appeals' journal entry, filed on October 25, 1968, is as follows:
"This matter came on to be heard on the petition, demurrer, motion to dissolve the restraining order, briefs and arguments of counsel, and the court being duly advised sustains the demurrer and grants the motion to dissolve the restraining order, to all of which relators except.
"Relators are hereby granted 20 days to file an amended petition."
Relators presented to the Court of Appeals an entry of dismissal without prejudice on November 13, 1968. That entry was not spread upon the court's journal.
On November 18, 1968, the court journalized the following judgment entry:
"This cause having been heard on a demurrer to the petition and a motion to dissolve, the restraining order with briefs and a stipulation of facts having been filed and arguments of counsel heard, the court being duly advised, sustained the demurrer and granted the motion to dissolve the restraining order and allowed relators twenty (20) days to file an amended petition.
"And thereupon, the relators having failed to plead further, it is hereby ordered that judgment be entered in favor of respondents with prejudice, and that relators pay the cost of this proceeding."
From that judgment entry relators appealed to this court as a matter of right, contending that the Court of Appeals erred in not allowing a dismissal without prejudice during the 20-day period allowed by the court for them to plead further.
In case No. 68-706, respondents, both by motion to dismiss and answer, request that the action in this court be dismissed for the reason that the cause has been previously adjudicated and an appeal is pending.
Mr. Stephen W. Young and Miss Antoinette J. Navarra, for relators in case No. 68-706 and appellants in case No. 68-713.
Mr. Kenneth J. Schneider, city solicitor, for respondents in case No. 68-706 and appellees in case No. 68-713.
Section 2323.05, Revised Code, in pertinent part, reads:
"An action may be dismissed without prejudice to a future action:
"(A) By the plaintiff, before its final submission to the jury, or to the court, when trial is by the court, * * *."
After the demurrer to relators' petition was sustained by the Court of Appeals, and relators given the right to plead further, the statutory right of relators to dismiss without prejudice was absolute. Therefore, the Court of Appeals should have approved the entry of dismissal without prejudice which was tendered on November 13, 1968.
In McGatrick v. Wason, 4 Ohio St. 566, this court held:
"Where a general demurrer to a declaration is sustained, and thereupon leave to amend the declaration is given, but the plaintiff subsequently, instead of amending, discontinues the action, there is no judgment that bars another suit upon the same cause of action."
A judgment of dismissal of an action, not involving the merits or distinguished from a dismissal upon the merits, is not a bar to a subsequent action. Loudenback v. Collins, 4 Ohio St. 251; Hutton v. Curry, 93 Ohio St. 339. See Moherman v. Nickels, 140 Ohio St. 450.
Respondents argue that the stipulation of facts and the arguments presented make it obvious that the case was heard upon the merits; therefore, that a final determination of the matter was made, as evidenced by the judgment entry filed November 18, 1968. This argued posture of the judgment is inconsistent with both the October 25, 1968, and November 18, 1968, entries. The latter entry mentions nothing of the merits but does set forth that relators have failed to plead as authorized by the former entry. Even if we were to look behind the plain language of the entries, other than the pleadings, the record contains only the stipulation of facts, which does not suggest that the cause was heard upon the merits.
It is uncontroverted that relators' counsel made a reasonable attempt to cause the court to journalize an entry of dismissal without prejudice and the court chose not to do so. Section 2323.05(A), Revised Code, gives the relator the absolute right of dismissal. Under the facts in the instant case, the Court of Appeals had no discretion to refuse to dismiss without prejudice.
Accordingly, in case No. 68-713, the judgment of the Court of Appeals is reversed.
In case No. 68-706, respondents' motion to dismiss is overruled, since relators' cause of action in case No. 68-713 is deemed to have been dismissed by the Court of Appeals without prejudice, and does not serve as a bar to this action. We are constrained to say that the filing of an original action in this court prior to an appellate review and further proceedings in the Court of Appeals in an identical action in that court, amounts to a circuitous legal adventure in forum selection which we do not favor. However, we believe that in this instance relators have a clear right to a hearing before this court upon the merits.
Relators' appointments were never voted upon by city council. They argue that silence amounts to confirmation by council. Counsel cite no authority, and we have been unable to discover any authority for that contention. Furthermore, it would be contrary to Section 3709.05, Revised Code, and Section 159.03 of the Codified Ordinances of the City of St. Bernard.
Relators maintain that Sections 3709.05 and 731.05, Revised Code, are in conflict. Section 3709.05 deals specifically with city health districts and indicates how the district's board of health is to be selected, i.e., "appointed by the mayor and confirmed by the legislative authority." Section 731.05 sets forth a restriction regarding confirmation of "any officer or employee in the city government." (Emphasis added.) Without examining other arguments concerning conflict between Sections 731.05 and 3709.05, we think that it is sufficient to say that a city health district is a state agency rather than a branch of city government. Therefore, Section 731.05 has no application in this case and there is no conflict with Section 3709.05. See State, ex rel. Mower, v. Underwood, 137 Ohio St. 1.
Failure of a legislative authority to vote on confirmation of persons appointed by a mayor to the board of health of a city health district does not amount to confirmation, as required by Section 3709.05, Revised Code, and Section 159.03 of the Codified Ordinances of the City of St. Bernard. Therefore, we conclude that relators are not entitled to the writ of quo warranto as prayed for.
In case No. 68-713, judgment reversed.
In case No. 68-706, writ denied.
MATTHIAS, Acting Chief Justice, COLE, JONES, O'NEILL, SCHNEIDER and HERBERT, JJ., concur.
COLE, J., of the Third Appellate District, sitting for TAFT, C.J.
JONES, J., of the Eleventh Appellate District, sitting for ZIMMERMAN, J. Because of the inability, "by reason of illness," of JUSTICE CHARLES B. ZIMMERMAN "to hear, consider and decide" this cause, JUDGE JONES of the Court of Appeals was, pursuant to Section 2 of Article IV of the Constitution of Ohio, duly directed by the Chief Justice "to sit with the justices of the Supreme Court in the place and stead of" JUSTICE ZIMMERMAN and JUDGE JONES did so and heard and considered this cause prior to the decease of JUSTICE ZIMMERMAN on June 5, 1969.