Opinion
No. 80-198
Decided June 25, 1980.
Mandamus — Remedy not available, when — Second appeal sought — Remedies available.
APPEAL from the Court of Appeals for Lorain County.
Gerald W. Davies, appellant herein, took a competitive examination for the position of patrolman in the city of Elyria ("city"). On May 8, 1978, appellant received a civil service appointment as a city patrolman. On October 23, 1978, appellant was suspended without pay by the city's police chief, Paul A. Brand. The suspension resulted from appellant's alleged intoxication while in possession of an "off-duty weapon" on October 21, 1978. On October 24, Brand recommended to the city safety-service director, Richard J. Bergman, that appellant's employment be terminated. Bergman met with appellant on October 25. By letter dated November 8, 1978, Bergman informed appellant that his employment was being terminated as a city patrolman effective November 8, 1978, in accordance with R.C. 124.34. The letter enumerated the reasons for appellant's termination.
On November 17, 1978, appellant filed a written request for an appeal hearing before the Elyria Civil Service Commission. The hearing was denied by the commission "on the grounds that Mr. Davies was on probation at the time of his discharge and, therefore, is not eligible for Civil Service Commission protection." Appellant filed an appeal to the Court of Common Pleas of Lorain County on January 10, 1979. Appellee's motion to dismiss for lack of subject matter jurisdiction was sustained.
On August 6, 1979, appellant brought an action in mandamus in the Court of Appeals for Lorain County requesting reinstatement as a city patrolman and back wages. The Court of Appeals determined that appellant had a plain and adequate legal remedy and, accordingly, denied the writ.
The cause is now before this court on an appeal as of right.
Messrs. Cutler Giesser and Mr. William R. Giesser, for appellant.
Mr. Terry S. Shilling, law director, and Mr. Elmer A. Bessick, for appellees.
"***One remedy at law is the right of appeal. ***[T]he relatrix did avail herself of this remedy***. The fact that relatrix was unsuccessful in that appeal does not entitle her to substitute a writ of mandamus as an indirect means of perfecting a second appeal." State, ex rel. Shively, v. Nicholas (1949), 151 Ohio St. 179, 181; see, also, State, ex rel. Bargar, v. Ross (1978), 53 Ohio St.2d 18, 19. Similarly, appellant, pursuant to R.C. 124.34, perfected appeals to the civil service commission and to the Court of Common Pleas. However, appellant failed to use this same statutory right of appeal in the Court of Appeals. Rather, appellant inappropriately brought an action in mandamus when an adequate legal remedy existed under R.C. 124.34.
Therefore, the Court of Appeals properly denied the requested writ, and its judgment is hereby affirmed.
Judgment affirmed.
CELEBREZZE, C.J., HERBERT, W. BROWN, P. BROWN, SWEENEY, LOCHER and HOLMES, JJ., concur.