State ex rel. Barcroft v. Stover
| Decision Date | 02 July 1958 |
| Parties | , 7 O.O.2d 289 The STATE ex rel. BARCROFT v. STOVER. |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. There is nothing in the statute (Section 143.27, Revised Code), concerning removal of an employee from the civil service rolls, which requires the appointing authority to publish the notice provided for in said Section 143.27, Revised Code, to one removed from the rolls, where such employee is absent without leave; nor is it required that the appointing authority exercise due diligence to discover the whereabouts of a civil service employee absent without leave, in order to serve such employee with the order of removal set out in such statute.
2. A motion for a judgment on the pleadings, filed under favor of Section 2323.18, Revised Code, presents a question of law, and, in such a situation, the court may look only to the pleadings in determining the motion.
Don Edgar Flath, Dalton, and Jack Roesch, Massillon, for the motion.
William Saxbe, Atty. Gen., and Walter M. Shea, Columbus, contra.
This matter comes before this court on a motion for judgment on the pleadings filed by the plaintiff. The motion, as filed, is submitted on the briefs of the parties without oral argument. The action is mandamus (filed originally in this court) to secure the reinstatement of Mary S. Barcroft to a civil service position.
A motion for a judgment on the pleadings, filed under favor of Section 2323.18, Revised Code, presents simply a question of law, and, in such a situation, the court may look only to the pleadings in determining the motion. Scrutchings v. Nimer, Ohio App., 124 N.E.2d 754.
The court, in ruling upon a motion for judgment on the pleadings, should liberally construe the pleadings in favor of the party against whom the motion is filed. Every reasonable inference should be accorded the pleading in favor of its sufficiency. Balduf v. Evans, 95 Ohio App. 292, 118 N.E.2d 848.
The motion is, in effect, a demurrer to the answer. In such motion the movant says that 'the new matter contained in said answer does not state facts sufficient ot constitute a defense.'
With these preliminary rules stated with reference to this motion for judgment on the pleadings, let us examine the case to see if we have herein only an issue of law.
The petition alleges that: Dr. Stover is the superintendent of Apple Creek State Hospital and the appointing officer for the civil service position occupied by the relator, Mary S. Barcroft, who was appointed to a civil service position by the said Dr. Stover on September 16, 1955; relator was denied, on December 2, 1957, the right to work, without any previous notice of removal or dismissal and without reason, written or otherwise; she has been wrongfully and illegally deprived of her position and salary, although she has, at all times since December 2, 1957, been ready, able and willing to perform her duties in such position. She says she has no adequate remedy at law.
The answer of the defendant, Dr. Stover, is that: he is the superintendent of the institution and is the appointing officer for certain civil service position in the institution (there is no admission that he has the power to appoint to this position); relator was appointed to the position of Food Service Worker II on September 16, 1955, a classified civil service position; relator was absent without leave from her work from July 19, 1957, until July 31, 1957, and carried on the roll as absent without leave; relator was reported to the Civil Service Commission as having automatically resigned, in accordance with the rules of such commission; the defendant has now no authority or power to restore relator to duty, which she requested on November 23, 1957, to take effect December 2, 1957.
Under Section 5119.49, Revised Code, the superintendent of Apple Creek State Hospital had the authority to appoint the necessary employees designated therein, but subject to the rules of the Civil Service Commission. The relator was within the classification set out in Section 143.09, Revised Code, and although it is not admitted in the answer, the natural inference is that Mary Barcroft was one who received her appointment, after proper certification, from the superintendent of the Apple Creek State Hosptial.
From the pleadings herein, it is shown...
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