Opinion
No. 34719
Decided June 13, 1956.
Appeal — Dismissal — No bill of exceptions — Mandamus to require assignment to duty — Civil service — Bill of exceptions necessary.
APPEAL from the Court of Appeals for Cuyahoga County.
Relator, Novak, instituted this action in mandamus in the Court of Appeals, seeking a writ requiring respondents, members of the civil service commission and others, "to assign the relator to a shift of duty under the two-platoon system in the fire department of the city of Maple Heights."
Relator alleges in his third amended petition that in 1930 he received his original appointment in the division of fire of the village of Maple Heights; that in 1937 he was promoted to captain in the division of fire; that he has performed and continues to perform all duties required of him by his superior officer; that in 1952 he was denied the opportunity to participate in the civil service examination; and that he has not received an order to take charge of a two-platoon shift, although he has requested such order orally and in writing.
Respondents, in their answer, state that relator was a volunteer fireman who furnished services only on an emergency basis, received pay on a "per call" basis, and was ineligible to take the competitive examinations. They deny that he was ever appointed to the position of fireman in the fire department and that he was ever promoted to the position of captain in the fire department, and deny all other allegations of the petition not expressly admitted to be true.
The Court of Appeals entered judgment denying the writ. Its journal entry recites in part:
"This cause came on for hearing * * * on the relator's third amended petition in mandamus, the respondents' answer thereto, on the evidence presented and on the arguments and briefs presented by counsel.
"This court being fully advised in the premises, finds that the relator has failed to show a clear legal right to the writ of mandamus."
An appeal as of right from that judgment brings the cause to this court for review.
Mr. Richard B. Kay and Mr. A.F. Gallagher, for appellant.
Mr. Austin T. Klein and Mr. Elmer R. Vanek, for appellees.
Since it appears from the record that the cause was heard by the Court of Appeals on the pleadings and evidence, and there is no bill of exceptions before this court exemplifying the facts necessary in determining the issues presented, the appeal is dismissed. State, ex rel. Schneider, v. Blythin, Judge, 157 Ohio St. 66, 104 N.E.2d 449.
Appeal dismissed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, STEWART, BELL and TAFT, JJ., concur.