Opinion
No. 28394
Decided July 9, 1941.
Appeal — Final order — Refusal to permit adverse or necessary party to intervene — Sections 11255 and 12223-3, General Code — Laches — Failure to endeavor to intervene before judgment in former action — Schools — Consolidation of districts and levy of taxes.
APPEAL from the Court of Appeals of Hamilton county.
ON MOTION to dismiss.
The present appeal was filed as of right in this court, from an entry of the Court of Appeals overruling a motion and application of the appellants, Frank Minges and two others, to set aside a judgment of that court and for leave to intervene as respondents in a mandamus proceeding, the second of three actions hereinafter set forth.
A determination of the right of the appellants to intervene in the Court of Appeals will be dispositive of the present appeal, which has been challenged by motion to dismiss.
The following is a recital of pertinent facts in the three actions:
On August 10, 1937, the County Board of Education of Hamilton county adopted a resolution abolishing Whitewater Township, Berea and Elizabethtown Rural School Districts, and creating a new district to be known as the Whitewater Township Rural School District. In effect the resolution provided for consolidating the three districts. Certain documents purporting to be remonstrances were filed within 30 days.
On September 13, 1937, the first action was instituted when the Board of Education of the Berea Rural School District and its members filed a petition in the Court of Common Pleas of Hamilton county to enjoin the county board of education from completing the consolidation, the cause being No. A-59238. The Court of Common Pleas granted a permanent injunction; the Court of Appeals, on an appeal on questions of law and fact, vacated and dissolved the permanent injunction and rendered judgment for the county board of education ( Board of Education of Berea Rural School Dist. v. Board of Education of Hamilton County, 66 Ohio App. 267, 31 N.E.2d 702); and a motion to certify the record was denied by this court in June 1940.
On October 8, 1940, the second action was commenced when Joseph W. Hayes and two others, as residents and taxpayers of parts of the newly created school district which were formerly the Elizabethtown and Whitewater Township Rural School Districts, filed in the Court of Appeals a petition in mandamus against the county auditor, the budget commission and the board of education of the newly created Whitewater Township Rural School District. The petition in that action, after pleading the facts hereinbefore recited as to the proceedings to consolidate the three districts and the history of the former litigation, in substance alleged that although the three school districts had gone out of existence, nevertheless, the respondents were proceeding to levy taxes for 1940 at different rates on real estate as though the three abolished districts still existed, and that the rate in the former Berea school district would be the lowest. A writ was prayed for commanding respondents to fix, authorize and levy, for 1940 and thereafter, a uniform tax for school purposes. On October 9, 1940, a demurrer to the petition was filed and on that day overruled. In the entry ordering a uniform tax levy for school purposes the Court of Appeals found that in accordance with its former judgment and pursuant to Section 4736, General Code, the consolidation had been completed and the three former districts had been abolished and no longer existed. Neither the relators nor respondents gave notice of appeal from that final order as to them.
On October 11, 1940, Frank Minges and two other citizens and taxpayers of Berea Rural School District filed a motion and application to set aside the judgment last referred to and for leave to be made parties to the mandamus proceeding. In their motion and application the applicants below set forth they were not parties to cause No. A-59238, instituted in the Common Pleas Court on September 13, 1937, by the Board of Education of the Berea Rural School District. The motion stated that another action in injunction, No. A-72585, which is the third action herein discussed, was pending in the Court of Common Pleas of Hamilton county in which the applicants were plaintiffs and the defendants were the Board of Education of Hamilton county, its members, its clerk, the county auditor and "the newly proposed created" Board of Education of Whitewater Township Rural School District; that the proposed consolidation proceedings had not been completed; that in cause No. A-72585 the county board of education, its clerk and "the newly proposed created" board had been enjoined from taking additional steps to effect the proposed consolidation and the county auditor enjoined from adjusting any valuations or tax rates made pursuant to the consolidation resolution; that applicants were not parties in cause No. A-59238 and that the question of whether applicants were in privity with the parties in cause No. A-59238 was pending in cause No. A-72585; that the only question determined in cause No. A-59238 was whether the resolution passed by the county board of education was legal insofar as the Berea Rural School District was concerned; that the interests of the applicants as taxpayers were diametrically opposed to the interests of the relators in the mandamus proceeding; that at the time of filing cause No. A-72585 the consolidation proceedings had not been perfected as the members of the newly proposed school board had not been sworn in, the books of the clerks of the boards of education had not been closed and the county auditor had not adjusted the rate for the new district; that the order in the present controversy was made by the Court of Appeals without notice to the applicants; that the appearance of the respondents was entered without service, by the demurrer filed by the prosecuting attorney; that the prayer of the petition was granted the same day on which it was filed; and that the applicants could not intervene prior to the rendition of the judgment.
Mr. George Metzger, for appellees.
Mr. Nicholas Bauer and Mr. George J. Mountel, for appellants.
Counsel for appellees raises only two questions in support of the motion to dismiss this appeal. First, were the appellants necessary and proper parties to the mandamus proceeding and, if so, did the Court of Appeals abuse its discretion in refusing to allow them to intervene? Second, was the entry from which this appeal was taken a final order?
Counsel for appellants submit that these additional propositions are involved: First, error by the Court of Appeals in sustaining a demurrer which set up an affirmative defense; second, laches by present appellants in not endeavoring to intervene prior to the rendition of judgment by the Court of Appeals in the mandamus proceeding; and, third, whether the adjudication of the first injunction action (No. A-59238) precluded the taxpayers' injunction proceeding (No. A-72585).
The refusal to permit a necessary party to intervene constitutes a final order under Section 12223-3, General Code, in that the denial affects a substantial right of such party.
Were the appellants necessary parties within Section 11255, General Code, which provides for the joinder of defendants? That section reads:
"Any person may be made a defendant who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination of a question involved therein." (Italics ours.)
The appellants claimed an interest adverse to the relators in the mandamus proceeding in the Court of Appeals. However, the interest of the appellants was not adverse to that of the Board of Education of Berea Rural School District in the first injunction proceeding. The present appellants were content to abide by the judgment of the Court of Common Pleas in the first injunction case and to anticipate a favorable judgment by the Court of Appeals or this court before instituting the second injunction suit. Although the present appellants were not guilty of laches in the mandamus proceedings, that doctrine applies to their conduct with reference to the first action to enjoin the consolidation Chinn v. Trustees, 32 Ohio St. 236; State, ex rel. Smith, v. Witter, Dir., 114 Ohio St. 357, 151 N.E. 192.
The motion to dismiss the appeal will be sustained.
Motion sustained.
WEYGANDT, C.J., TURNER, WILLIAMS, HART, ZIMMERMAN and BETTMAN, JJ., concur.
MATTHIAS, J., not participating.