State ex rel. Braman v. Masheter, 39763

• Decision Date: 09 March 1966
• Docket Number: No. 39763,39763
• Citation: 34 O.O.2d 386,214 N.E.2d 804,5 Ohio St.2d 197
• Parties: , 34 O.O.2d 386 The STATE ex rel. BRAMAN, Appellant, v. MASHETER, Director of Highways, et al., Appellees.
• Court: Ohio Supreme Court

Page 197

5 Ohio St.2d 197

214 N.E.2d 804, 34 O.O.2d 386

The STATE ex rel. BRAMAN, Appellant, v. MASHETER, Director of Highways, et al., Appellees.

No. 39763.

Supreme Court of Ohio.

March 9, 1966.

Relator instituted this action in mandamus in the Court of Appeals for Cuyahoga County against the Director of Highways of the state of Ohio and against the city of Cleveland, in which he alleges that he is the owner in fee of certain property located at what was formerly the southwest corner of the intersection of East 9th Street and Broadway Avenue in Cleveland, Ohio.

Relator alleges that respondents, in constructing an off-ramp from the Innerbelt Freeway, destroyed access to the north line of relator's property; that this has resulted in the reduction in value of relator's property; and that, therefore, relator's property has been taken without due process of law.

Relator alleges that the respondents have refused to institute proceedings to appropriate relator's property which has already been taken. He prays for a writ of mandamus to compel respondents to institute proceedings for the appropriation of his property and the determination of the amount of compensation to which he is entitled.

The Director of Highways moved to quash service of summons against him, and the city demurred to the petition.

The Court of Appeals sustained the motion to quash, sustained the demurrer and dismissed the action.

This cause is before this court upon an appeal as of right.

Melvin J. Singer, Cleveland, for appellant.

William B. Saxbe, Atty. Gen., I. Charles Rhoads, Columbus, George E. Mastics and Eli Manos, Cleveland, for appellee Director of Highways.

Bronis J. Klementowicz, Director of Law, Frank R. Klaus and Harry Auslander, Cleveland, for appellee City of Cleveland.

PER CURIAM.

The questions presented by this appeal are whether the Court of Appeals erred in granting the motion to quash service of summons and in sustaining the demurrer to the petition.

It is provided in Section 5501.18, Revised Code:

'The director of highways shall not be suable, either as a sole defendant or jointly with other defendants, in any court outside Franklin county except * * * by a property owner to prevent the taking of property without due process of law, in which case suit may be brought in the county where such property is situated * * *.'

Under this statute, the director may not be sued in Cuyahoga County unless this case falls within the exception in the abovequoted statute.

This is an absolute right conferred by statute, and the joinder of a defendant which is situated in the county where suit is brought does not deprive the director of this right. State ex rel. Barber, Pros. Atty. v. Rhodes, Aud., 165 Ohio St. 414, 136 N.E.2d 60; State ex rel. Gregory v. Masheter, Dir., 3 Ohio St.2d 43, 208 N.E.2d 926.

It appears from the face of the petition that this suit was not brought to prevent the...