Opinion
No. 24021
Decided May 31, 1933.
Supreme Court — Affirmances — Insufficient record — No bill of exceptions — Allegations of mandamus answer denied by reply in Court of Appeals — Reinstatement of waterworks employee and res judicata.
ERROR to the Court of Appeals of Crawford county.
This case was admitted to this court on error proceedings instituted to a judgment of the Court of Appeals of Crawford county. A petition had been filed in that court praying for a writ of mandamus to restore the relator to a position as clerk, cashier, and bookkeeper of the department of water of the city of Bucyrus. A demurrer was filed to the petition, which was overruled. The defendants then answered, setting up in substance that the relator is not entitled to, nor should she be granted, any relief prayed for, for the reason that the matters and things set forth in her petition were fully and finally adjudicated and determined by the court of common pleas of Crawford county, on or about March 28, 1930, in an action wherein The State, ex rel. Lucile Hertzer, was plaintiff and the defendants herein were defendants. The answer sets up that in that case the relator sought the relief herein prayed for, that such final order and decision were adverse to the claim of relator and in favor of these defendants, and that the matter was thereupon and ever since has been adjudicated and finally determined, the order being affirmed by the Court of Appeals of Crawford county on or about August 4, 1930; that any further or additional matter not set forth in such action, but set forth in the petition herein, was fully known to the relator at the time of the hearing of the former cause in the court of common pleas, and might have been set forth at that time by the relator, and that relator is now estopped to claim and set forth any or additional matters not set forth in such former action, and that such former action is a full adjudication of all matters therein set forth, and all matters which relator might have set forth therein pertinent to her claim, and especially the claim and matters set forth in her petition herein.
In the fifth defense of the answer the defendants allege that relator at no time had any rights in and to any position that she may have held in such water department, that she was merely an employee subject to discharge at any time by the officials of the city, and that her services were in good faith dispensed with.
Other defenses not material here were also set up.
A reply was filed, in which the relator denied each and every allegation contained in the several defenses.
The Court of Appeals made the following entry:
"This cause coming on to be heard upon the pleadings and the evidence, and arguments of counsel, and after full consideration thereof the court finds on the issues joined for the defendants and that the relator is not entitled to the relief prayed for.
"The court finds that relator never had a lawful title to her employment, inasmuch as there was no compliance with the terms of the statutes governing the classified service. That she was a de facto employe whose acts were valid, is of no consequence in this suit.
"The court also finds the plea of res judicata must be sustained because though there was no answer and though defendant invoked trial by motion, such invocation was acquiesced in by relator, and the journal entry disposing of the motion shows that a trial was had on its merits.
"The dismissal was not only of the amended petition, but was also of the action, and thus occurred the final determination of the case.
"Wherefore it is ordered, adjudged and decreed that this proceeding be and hereby is dismissed at the costs of the relator, for which judgment is rendered against her, to all of which relator excepts."
Mr. W.S. Thurstin, for plaintiff in error.
Mr. J.D. Sears, for defendants in error.
No bill of exceptions has been filed in the case. The case therefore stands in this court with allegations of fact embodied in the answer denied by the reply, and without sufficient record to present the assignments of error set forth in the petition in error.
The judgment must therefore be affirmed. Hilton v. State, ex rel. Bell, 108 Ohio St. 233, 140 N.E. 681, and Marriott v. Hawk, 111 Ohio St. 285, 145 N.E. 287.
Judgment affirmed.
DAY, ALLEN, STEPHENSON, JONES and MATTHIAS, JJ., concur.
WEYGANDT, C.J., not participating.