State ex rel. Swartley v. Kalina

Citation187 N.E. 645,46 Ohio App. 19
PartiesSTATE ex rel. SWARTLEY v. KALINA, City Treasurer, et al.
Decision Date10 July 1933
CourtUnited States Court of Appeals (Ohio)

46 Ohio App. 19
187 N.E. 645

STATE ex rel. SWARTLEY
v.
KALINA, City Treasurer, et al.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

July 10, 1933.


Proceeding by the State, on the relation of J. Marvin Swartley, for writs of mandamus to John P. Kalina, Treasurer of the City of Cleveland, and another. On defendants' demurrer to the petition.-[Editorial Statement.]

Demurrer sustained, and writ refused.


[Ohio App. 19]Cline & Patterson, of Cleveland, for relator.

N. Geo. Kerr and Wm. C. Dixon, both of Cleveland, for respondents.


LIEGHLEY, Presiding Judge.

Relator, J. Marvin Swartley, served as an electrical inspector in the division of buildings of the city of Cleveland, having been appointed to said position from an eligible list certified by the civil service commission, at a salary of $2,700 per annum. On April 1, 1929, relator and others were temporarily laid off. At the time of the lay-off, relator was first on the eligible lay-off list, and was first in order for reappointment.

August 5, 1929, a vacancy occurred for the appointment of one electrical inspector. The petition alleges that, under rule 9, section 5, in force at that time, the relator was entitled to this appointment, and, as this [Ohio App. 20]case is considered on demurrer to the petition, the facts well pleaded in the petition must be accepted as true.

It is further alleged that relator was not appointed, but that another lower on the list received the appointment to this vacancy. It is claimed that relator protested the appointment of another, lower on the lay-off list, and tendered his own services and demanded appointment.

On August 16, 1930, relator was reappointed upon certification of the civil service commission, was replaced in the position formerly held by him, and assigned to the work formerly done by him.

November 1, 1932, relator filed his petition in this court praying that a writ of mandamus issue to the commissioner of accounts of the city of Cleveland to place his name upon the pay roll for the period extending from August 5, 1929, to August 16, 1930, and that a writ issue to the treasurer of the city of Cleveland requiring him to issue his voucher for the salary for said period, less the amount, if any, that relator may have earned during that time. To this petition the defendants interposed a demurrer, on the ground that it appears on the face of the petition that it does not state facts which show a cause of action.

From the allegations of the petition it is to be...

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