Opinion
No. 41109
Decided April 17, 1968.
Municipal corporations — Annexation of territory — Petition to enjoin — Automatic temporary injunction terminated when petition dismissed — Temporary injunction not obtained on appeal — Annexation adopted — Cause moot.
CERTIFIED by the Court of Appeals for Franklin County.
This action began when Harvey Walker, appellee herein, filed a petition in the Franklin County Court of Common Pleas to enjoin the city clerk of the city of Columbus from presenting an annexation plan to the city council for adoption. The petition was filed pursuant to Section 709.07, Revised Code, which provides as follows:
"If, within sixty days from the filing of the transcript, map or plat, and petition in his office as required by Section 709.03 of the Revised Code, the auditor or clerk of the annexing municipal corporation receives notice from any person interested that such person has presented a petition to the Court of Common Pleas to enjoin further proceedings, such auditor or clerk shall not report to the legislative authority such transcript, map or plat, and petition, until after the final hearing and disposition of such petition."
A motion to strike the petition from the files, on the ground that it had been improperly filed with the clerk of the court instead of with the court itself, was made by the city clerk, defendant in the trial court and appellant herein. The court sustained the motion and dismissed the petition. Walker then filed a notice of appeal, but did not obtain a temporary injunction against annexation proceedings from the Court of Appeals. While this appeal was pending, the city council adopted Ordinance No. 245-66, which accepted the annexation. The city clerk subsequently filed a motion to dismiss the appeal on the ground that the case was moot. This motion was denied, and, on the merits, the Court of Appeals reversed the judgment of the trial court, holding that filing the petition with the clerk was tantamount to filing it with the court.
The Court of Appeals, finding that its judgment was in conflict with that in Eckart v. Kroeger, 111 Ohio App. 32, certified the record to this court for review and final determination.
Mr. Henry Clay Scott, for appellee.
Mr. John C. Young, city attorney, Mr. Alba L. Whiteside, Mr. Narcus J. Tsiliacos and Mr. Harrison W. Smith, Jr., for appellant.
We find that the adoption by the city council of Ordinance No. 245-66 rendered this case moot. See Miner v. Witt, 82 Ohio St. 237, and Webster v. Serrott, 7 Ohio App.2d 67. At the time this annexation ordinance was adopted there was no injunction, temporary or otherwise, in effect to prevent such annexation. The automatic temporary injunction provided in Section 709.07, Revised Code, was terminated when the Court of Common Pleas dismissed the petition, and Walker did not obtain a temporary injunction from the Court of Appeals, which would have been the proper way to prevent this cause from becoming moot. Croll v. Franklin, 36 Ohio St. 316; Section 2727.05, Revised Code.
Judgment reversed.
TAFT, C.J., ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT and BROWN, JJ., concur.