Opinion
No. 23892
Decided June 21, 1933.
Mandamus — Joinder of defendants — Any person claiming adversely, or necessary to complete determination — Sections 11255 and 12295, General Code — Mandamus not substitute for proceeding to marshal liens.
1. Under Sections 11255 and 12295, General Code, any person may be made a defendant in a mandamus action who has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of a question involved therein.
2. The extraordinary writ of mandamus is not a substitute for a proceeding to marshal liens.
IN MANDAMUS.
This case has previously been heard upon demurrer to the petition for a writ of mandamus filed originally in this court. The demurrer to the petition was overruled. State, ex rel. Nixon, v. Merrell, Dir. of Highways, 126 Ohio St. 239, 185 N.E. 56. Thereafter the defendant O.W. Merrell, as director of highways of the state of Ohio, moved the court for an order making the Ohio Casualty Insurance Company, the Richter Transfer Company of Cincinnati, the Moores-Coney Corporation of Cincinnati, William O'Connor of Columbus, Larry O'Connor of Columbus, the Ross Construction Company of Columbus, and the Clements-Orr Company parties defendant in the action, and this motion was allowed by the court. The Standard Oil Company was later made a party defendant.
Thereafter answers and cross-petitions were filed by the Clements-Orr Company, a partnership, by the E.H. Bardes Range Foundry Company, an Ohio corporation, by John G. Keller, receiver for the Clements-Orr Company, a corporation, by the Ohio Casualty Insurance Company, surety for the general contractor, by the Moores-Coney Corporation, and by the Standard Oil Company.
It is not necessary to set forth at length all of the various pleadings filed by these defendants. Suffice it to say that whereas upon demurrer to the petition the relator appeared to be the only claimant to the fund held by O.W. Merrell, as director of highways of the state of Ohio, it now appears by the various pleadings filed herein that the Richter Transfer Company of Cincinnati, the Moores-Coney Corporation of Cincinnati, William O'Connor of Columbus, Larry O'Connor of Columbus, and the Ross Construction Company of Columbus, each claims some right in and lien on the moneys due and owing from the state of Ohio on account of the contract between the Clements-Orr Company, general contractor, and the State of Ohio, by virtue of having filed with the defendant O.W. Merrell, as such director of highways, a sworn and itemized statement of the amount and value of labor performed and materials furnished by each of them, with all credits and set-offs thereon, which labor and materials are stated therein to have been performed and furnished in the construction of the improvement set forth in the petition by virtue of a contract between them and the Clements-Orr Company, general contractor, the amounts claimed to be due. thereon being $12,824.80, $39,583.18, $399.50, $830.80 and $1,733.87, respectively.
It further appears from the pleadings that the Ohio Casualty Insurance Company claims some right in and to such moneys due and owing from the state of Ohio on account of such contract between the Clements-Orr Company and the state of Ohio by virtue of an assignment executed and delivered to the Ohio Casualty Insurance Company by the Clements-Orr Company, and by virtue of its right of subrogation as surety for the performance of such principal contract by the Clements-Orr Company.
It further appears that the Clements-Orr Company through its receiver claims such money by reason of its contract with the state of Ohio, due to the fact that the relator herein, prior to filing the statements described in the petition, filed two suits in the common pleas court of Franklin county, Ohio, against the Clements-Orr Company for the identical materials furnished and labor performed covered by such statements, in which suits such company denies all liability to such relator, which suits are still pending in the common pleas court of Franklin county.
Messrs. Hamilton Kramer and Mr. Marion A. Ross, for relator.
Mr. John W. Bricker, attorney general, Mr. Thomas M. Miller and Mr. Charles G. Williams, for O.W. Merrell, director of highways.
Messrs. Matthews Matthews and Mr. Alton E. Purcell, for the E.H. Bardes Range Foundry Company and the Moores-Coney Corporation.
Mr. John H. Summers and Mr. John M. Vorys, for John G. Keller, receiver of the Clements-Orr Company.
Mr. W.S. Pealer, for the Clements-Orr Company, a partnership.
Messrs. Vorys, Sater, Seymour Pease, for the Ohio Casualty Insurance Company.
Messrs. Holliday, Grossman McAfee, for the Standard Oil Company.
The relator strenuously maintains that the court should not have granted the motions to make new parties defendant, and files a demurrer to each of the answers and cross-petitions so filed by such new parties defendant.
The answers and cross-petitions of the contractor and the surety who contest the relator's right to his claimed lien and those of other lien claimants, are properly filed. Sections 11255 and 12295, General Code.
With these pleadings before us what appeared upon demurrer to the petition to be an uncontested claim, attacked upon the ground against which this court held unanimously that a lien does not arise under the statutes against moneys in the hands of the state held by the state as stake-holder merely, now appears to be an action for the marshaling of liens, in which the amount and the validity of the claim of the relator is contested not only by the director of highways, but by several other claimants to the same fund. Since there are now pending in the Franklin county court of common pleas two suits filed by Nixon against the Clements-Orr Company and the surety, and since there is also pending an action in which the receiver for the Clements-Orr Company was appointed, to which Nixon's surety is a party, the relator has an adequate remedy at law which he himself elected to pursue.
We have therefore a situation in which the action is not to compel the performance of a statutory duty to which performance relator has a clear legal right, but to try out conflicting claims in which this court is not the proper forum, and for which the action of mandamus is not the proper remedy.
If the record presents disputed questions of law and fact which ought not to be tried in a proceeding for mandamus, this is ground for refusal to issue the writ. United States, ex rel. Redfield, v. Windom, 137 U.S. 636, 11 S. Ct., 197, 34 L.Ed., 811. A similar holding was made in the case of Bayard v. United States, ex rel. White, 127 U.S. 246, 8 S.Ct., 1223, 32 L.Ed., 116.
In the case of Brown v. Turner, Jr., 70 N.C. 93, while the action was one in quo warranto, it was stated in the syllabus that mandamus will not lie when two persons claim the same duty, adversely to each other, against a third party.
In Sanderson v. Salmon River Canal Co., Ltd., 34 Idaho 145, 199 P. 999, it was held: " Mandamus is not a proper remedy to decide conflicting interests. If third parties have rights or interests adverse to those of plaintiff, mandamus is not the proper remedy."
As the instant case now develops, the record presents a number of conflicting interests adverse to those of the relator.
The petition in mandamus will be dismissed, and this necessitates the dismissal of the cross-petitions. Since the petition and cross-petitions are dismissed, it is not necessary to rule upon the demurrers of the relator to the various cross-petitions filed.
Petition and cross-petitions dismissed,
WEYGANDT, C.J., DAY, STEPHENSON, JONES and MATTHIAS, JJ., concur.
BEVIS, J., not participating.