Ohio Supreme Court, 1939

State Ex Rel. Stine v. McCaw

Ohio Supreme Court · Decided November 15, 1939 · Hart, Weygandt, Day, Zimmerman, Matthias, Williams, Myers

23 N.E.2d 631; 136 Ohio St. 41; 136 Ohio St. (N.S.) 41; 15 Ohio Op. 538; 1939 Ohio LEXIS 237 (North Eastern Reporter, Second Series)

Cases that cite this one

15 later published cases cite this decision.

State ex rel. Pressley v. Industrial Commission (Ohio 1967)
State Ex Rel. Finkbeiner v. Lucas County Board of Elections (Ohio 2009)
State ex rel. United Auto Aerospace & Agricultural Implement Workers of America v. Ohio Bureau of Workers' Compensation (Ohio 2002)
State ex rel. United Auto Aerospace & Agricultural Implement Workers of Am. v. Ohio Bur. of Workers' Comp. (Ohio 2002)
State ex rel. Crenshaw v. King (Ohio Ct. App. 2021)
State Ex Rel. Act One v. Juvenile Court, Unpublished Decision (6-18-2004) (Ohio Ct. App. 2004)
Roberts v. Nau, Unpublished Decision (2-23-2004) (Ohio Ct. App. 2004)
State ex rel. Riley Construction Co. v. East Liverpool City School District Board of Education (Ohio 1967)
State ex rel. Central Service Station, Inc. v. Masheter (Ohio 1966)
State Ex Rel. Taylor v. Michael Halleck, Unpublished Decision (10-11-2000) (Ohio Ct. App. 2000)
State ex rel. Zupancic v. Limbach (Ohio 1991)
State, Ex Rel. Cullinan v. Boards, Elections (Ohio Ct. App. 1968)
State Ex Rel. Marshall v. Civil Service Commission (Ohio Ct. App. 1967)
State ex rel. Selected Properties, Inc. v. Gottfried (Ohio 1955)
State ex rel. Libbey-Owens-Ford Glass Co. v. Industrial Commission (Ohio 1954)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

Hart, J.

It was conceded on oral argument that the amended petition of relatrix states facts which, if proven, would entitle her to relief as against the respondents McCaw and Sherwood.

It is apparent, however, from the amended petition that the complaint made and relief sought against the respondents McCaw and Sherwood are not identical with the complaint made and relief sought against the respondents Smith and Emmons, and that there is, therefore, a misjoinder of causes of action and of parties respondent. O’Brien et al., Receivers, v. Fitzgerald, 143 N. Y., 377, 38 N. E., 371.

The relatrix seeks to have Elinor Hixenbaugh, who is not a party to this action, ousted from her position *44 through a court order requiring the respondents Smith and Emmons to discontinue her incumbency and to disapprove the payment of her salary. In so doing the relatrix seeks, in effect, an .injunctive remedy to restrain and enjoin these respondents from recognizing the so-called incumbent. No specific official position is here involved, and the relatrix can be interested only in her own restoration to her former position.

This court has no original jurisdiction in injunction and the amended petition shows no cause of action in mandamus against the respondents Smith and Emmons. St ate, ex rel. Penn Mutl. L. Ins. Co., v. Hahn, 50 Ohio St., 714, 35 N. E., 1052.

The demurrer of the respondents Smith and Emmons to the amended petition is sustained on the ground that it does not state a cause of action against them, and the demurrer of the respondents McCaw and Sherwood is sustained on the ground that there is a misjoinder of parties respondent.

Leave will be granted to relatrix to plead further.

Demurrers sustained.

Weygandt, O. J., Day, Zimmerman and Matthias, JJ., concur. Williams, J., concurs in the judgment. Myers, J., not participating.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.