Board of Health of St. Bernard v. City of St. Bernard, s. 68-706

• Decision Date: 02 July 1969
• Docket Number: Nos. 68-706,68-713,s. 68-706
• Citation: 48 O.O.2d 57,19 Ohio St.2d 49,249 N.E.2d 888
• Parties: , 48 O.O.2d 57 BOARD OF HEALTH OF ST. BERNARD et al. v. CITY OF ST. BERNARD et al. BOARD OF HEALTH OF ST. BERNARD et al., Appellants, v. CITY OF ST. BERNARD et al., Appellees.
• Court: Ohio Supreme Court

Page 49

19 Ohio St.2d 49

249 N.E.2d 888, 48 O.O.2d 57

BOARD OF HEALTH OF ST. BERNARD et al. v. CITY OF ST. BERNARD et al.

BOARD OF HEALTH OF ST. BERNARD et al., Appellants, v. CITY OF ST. BERNARD et al., Appellees.

Nos. 68-706, 68-713.

Supreme Court of Ohio.

July 2, 1969.

Syllabus by the Court

1. Where a demurrer to a petition is sustained and leave granted to plead further, petitioner has an absolute right, under Section 2323.05(A), Revised Code, to dismiss the action without prejudice within the time given to plead further. (McGatrick v. Wason, 4 Ohio St. 566, approved and followed.)

2. Section 3709.05, Revised Code, providing in part that 'a city health district shall establish a board of health * * * appointed by the mayor and confirmed by the legislative authority * * *,' is not in conflict with Section 731.05, Revised Code, since a board of health of a city health district is a state agency. (State ex rel. Morier v. Underwood, 137 Ohio St. 1, 27 N.E.2d 773, approved and followed.)

3. Failure of a legislative authority to vote on confirmation of persons appointed by a mayor to the board of health of a city health district does not amount to confirmation as required in Section 3709.05, Revised Code.

These cases involve identical quo warranto proceedings by relators to oust the respondents from their offices as members of the Board of Health of the City of St. Bernard, Ohio. In case No. 68-713 the petition was filed in the Court of Appeals. In case No. 68-706 the petition was filed in the Supreme Court.

In case No. 68-713, the parties agreed to a stipulation of facts which essentially is as follows:

Relators had been appointed as members of the St. Bernard Board of Health by the Mayor of the City of St. Bernard, and had served as members of the board from one to four years prior to October 3, 1968. Their appointments had never been confirmed by actual vote of the City Council of St. Bernard. On October 3, 1968, the mayor reappointed relators as members of the board and submitted their names to city council, but city council refused to confirm the appointments. Thereupon, the mayor appointed the respondents to fill the balance of the various terms on the board of health, and submitted their names to council for confirmation. The council, by a majority vote, confirmed the appointments of respondents and they have served in that position until the filing of this suit and restraining order.

Section 159.03 of the Codified Ordinances of the City of St. Bernard, which is consistent with Section 3709.05, Revised Code, provides that 'All appointments of members appointed to serve as members of the board of health shall be certified or transmitted to the council by the mayor immediately after making the appointments with the request that the same be confirmed by council * * *. No appointment as provided herein by the mayor shall be valid unless confirmed by council.'

Relators allege in their petition that their removal from office on October 3, 1968, as well as the appointment of respondents was unlawful. Relators prayed that respondents be required to show by what warrant they hold office and that they be ousted from office and relators restored to their positions. Respondents demurred to the petition.

The Court of Appeals' journal entry, filed on October 25, 1968, is as follows:

'This matter came on to be heard on the petition, demurrer, motion to dissolve the restraining order, briefs and arguments of counsel, and the court being duly advised sustains the demurrer and grants the motion to dissolve the restraining order, to all of which relators except.

'Relators are hereby granted 20 days to file an amended petition.'

Relators presented to the Court of Appeals an entry of dismissal without prejudice on November 13, 1968. That entry was not spread upon the court's journal.

On November 18, 1968, the court journalized the following judgment entry:

'This cause having been heard on a demurrer to the petition and a motion to dissolve, the restraining order with briefs and a stipulation of facts having been filed and arguments of counsel heard, the court being duly advised, sustained the demurrer and granted the motion to dissolve the restraining order and allowed relators twenty (20) days to file an amended petition.

'And thereupon, the relators having failed to plead further it is hereby ordered that judgment be entered in favor of respondents with prejudice, and that relators pay the cost of this proceeding.'

From that judgment entry relators appealed to this court as a matter of right, contending that the Court of Appeals erred in not allowing a dismissal without prejudice during the 20-day period allowed by the court for them to plead further.

In case No. 68-706, respondents, both by motion to dismiss and answer, request that the action in this court be dismissed for the reason that the cause has been previously adjudicted and an appeal is pending.

Stephen W. Young and Antoinette J. Navarra, Cincinnati, for relators in case No. 68-706 and appellants in case No. 68-713.

Kenneth J. Schneider, City Sol., for respondents in case No. 68-706 and appellees in case No. 68-713. DUNCAN, Judge.

Section 2323.05, Revised Code, in pertinent part, reads:

'An action may be dismissed without prejudice to a future action:

'(A) By the plaintiff, before its final submission to the jury, or to the court, when trial is by the court, * * *.'

After the demurrer to relators' petition was sustained by the Court of Appeals, and relators given the right to plead further, the statutory right of relators to dismiss without prejudice was absolute. Therefore, the Court of Appeals should have approved the entry of dismissal without prejudice which was tendered on November 13, 1968.

In McGatrick v. Wason, 4 Ohio St. 566, this court held:

'Where a general demurrer to a declaration is sustained, and thereupon leave to amend the declaration is given, but the plaintiff subsequently, instead of amending, discontinues the action, there is no judgment that bars another suit upon the same cause of action.'

A judgment of dismissal of an action, not involving the merits or distinguished from a dismissal upon the merits, is not a bar to a subsequent action. Loudenback v. Collins, 4 Ohio St. 251; Hutton v. Curry, 93 Ohio St. 339, 112 N.E. 1019. See Moherman v. Nickels, 140 Ohio St. 450, 45 N.E.2d 405, 143 A.L.R. 1174.

Respondents argue that the stipulation of facts and the arguments presented make it obvious that the case was heard upon the merits; therefore, that a final determination of the matter was made, as evidenced by the judgment entry filed November 18, 1968. This argued posture of the judgment is inconsistent with both the October 25, 1968, and November 18,...