Summary
stating that "a would-be appellant that was not a party to the underlying action 'is without capacity to appeal' unless that would-be appellant sought unsuccessfully to intervene at the trial-court level"
Summary of this case from In re K.S.Opinion
No. 39249
Decided June 9, 1965.
Appeal — Parties — One not party to case and not intervening — Without capacity to appeal.
APPEAL from the Court of Appeals for Hamilton County.
The relator, Edward Lipson, an appellee herein, brought this action in mandamus in the Court of Appeals, seeking a writ to compel the building commissioner of Cincinnati and the city to issue a building permit to relator. Originally, the village of Amberley and its building commissioner were also named as respondents, and a sewer-tap permit was sought from them. The village is not named in the amended petition.
The Court of Appeals granted the writ ordering the building permit and also the sewer-tap permit to be issued.
The city solicitor of Cincinnati, having refused, upon written request, to appeal the cause, one Charles Phillips, as a taxpayer, has appealed the cause to this court. Phillips was not a party below and did not attempt to intervene.
The cause is now before this court on a motion to dismiss the appeal, on the ground that Phillips has no capacity to appeal the cause as a taxpayer's suit.
Mr. Lawrence A. Kane, Jr., and Messrs. Aronoff, Rosen Lerner, for relator appellee.
Mr. William A. McClain, city solicitor, and Mr. Philip. S. Olinger, for respondent appellees, building commissioner and the city of Cincinnati.
Messrs. Weinberger, Grad Wolf, for appellant.
The appellant, Phillips, not having attempted to intervene as a party to the cause in the Court of Appeals, is without capacity to appeal. The motion to dismiss the appeal is sustained, and the appeal is dismissed.
Appeal dismissed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.