State, Ex Rel., v. Zangerle

• Decision Date: 25 January 1933
• Docket Number: 23692
• Citation: 184 N.E. 289,126 Ohio St. 118
• Parties: The State, Ex Rel. Bassichis Et Al., v. Zangerle, County Aud., Et Al.
• Court: Ohio Supreme Court

184 N.E. 289

126 Ohio St. 118

The State, Ex Rel. Bassichis Et Al., v. Zangerle, County Aud., Et Al.

No. 23692

Supreme Court of Ohio

January 25, 1933

Mandamus -- Writ not available where law remedy adequate -- Right to writ not conferred by failure to pursue legal remedy within limitation -- Refund of taxes paid after buildings removed from land.

1. Mandamus, being an extraordinary writ, is not available where there is a plain and adequate remedy in the ordinary course of law.

2. Failure of a relator to avail himself of his legal remedy within the period limited by the statute providing such remedy, does not confer upon him the right to the extraordinary remedy of mandamus.

This is an action in mandamus. It was instituted in the Court of Appeals of Cuyahoga county, where the relators sought a writ requiring the county commissioners of that county to order the county auditor to draw a warrant on the county treasurer for the refunding of taxes for a period of five years prior to the time of filing the petition. Issue was made by demurrer to the petition.

The admitted facts giving rise to the legal question are substantially as follows: The plaintiffs were the owners of certain parcels of land listed for taxation in their names, and also the owners of certain ninety-nine year leases which required them to pay the taxes. Each of these parcels had thereon certain old buildings which were demolished and removed at various times during the years from 1919 to 1926. New buildings were erected on such parcels, the tax value of which was assessed by the county auditor, but that official erroneously omitted to deduct the tax value of the old buildings removed, which taxes were paid by the plaintiffs without discovering that they were paying taxes on such old buildings until April, 1931, at which time they called the attention of the county auditor to that situation and requested a refund of the taxes so paid, which was refused, and the county commissioners have failed and refused to direct the county auditor to draw his warrant in favor of the plaintiffs for the amount of the taxes so erroneously charged and collected during said period of five years.

The Court of Appeals sustained the demurrer and dismissed the petition, whereupon a petition in error seeking a reversal of that judgment was filed in this court.

Mr Abraham Kollin, for plaintiffs in error.

Mr. P L. A. Lieghley and Mr. Emerich B. Freed, prosecuting attorneys, and Mr. Neil W. McGill, for defendants in error.

MATTHIAS J.

It is contended that the county auditor failed to discharge a duty incumbent upon...