Opinion
No. 28331
Decided February 26, 1941.
Mandamus — Taxpayer's action to compel county auditor to assess omitted property — Written request upon prosecuting attorney and security for costs, prerequisites — Section 2921 and 2922, General Code — Pleading — Leave to amend petition necessary, when — Section 11361, General Code — Leave granted to substitute relator, but new relator made party — Amended petition not in conformity with leave granted — Court may strike petition or amended petition from files and dismiss proceeding.
APPEAL from the Court of Appeals of Lake county.
Stanley L. Houghton, as a taxpayer of Lake county, filed in the Court of Appeals a petition in mandamus to compel county auditor, H.Z. Pethtel, to assess, and the county treasurer to collect, personal property taxes against a list of persons and corporations alleged to have filed incorrect returns and to have omitted property from their returns for the years 1926 to 1930, inclusive. The petition, which was verified by Houghton, alleged the action was brought as provided in Sections 2921 and 2922, General Code, but did not allege that written request had been made upon the prosecuting attorney to institute a civil action. No security for costs was given.
Demurrers by the auditor and treasurer both contained the ground that the petition did not state facts constituting a cause of action. The auditor's demurrer contained the further grounds that the action was not commenced within time and plaintiff did not have legal capacity to sue. The demurrer of the treasurer contained the additional grounds of misjoinder of parties respondent and lack of legal authority by the treasurer to perform the acts requested.
During the hearing on these demurrers to the petition, on motion in open court, leave was granted to dismiss the county treasurer, to amend the petition and " to substitute L.D. Crowther for Stanley L. Houghton, as relator." (Italics ours.) Security for costs was then deposited.
An amended petition verified by Crowther was filed, bearing the names of both Houghton and Crowther in the caption, pleading that "their" amended petition was filed pursuant to leave "to make L.D. Crowther a party plaintiff," containing thereafter averments only as to the relator in the singular person, without naming him, and alleging written request upon the prosecuting attorney to institute mandamus.
Thereafter the Court of Appeals, sua sponte, struck the petition from the files and dismissed the action for failure of Houghton as relator to make written demand upon the prosecuting attorney and to give security for costs as required by Section 2922, General Code. The court also set aside the leave announced from the bench to substitute another as relator and the leave to amend the petition.
The notice of appeal to this court is in the first person singular and the text does not name either relator but the notice is signed by counsel as attorneys for the state on relation of both parties.
Mr. Edward J. Brunenkant and Mr. J. Frank Pollock, for appellants.
Mr. Lester W. Donaldson, for appellee.
From the journal entry of the Court of Appeals and statements of counsel in their briefs filed in this court it appears that leave was granted "to substitute L.D. Crowther for Stanley L. Hough ton, as relator." However, the amended petition recites that a motion was allowed to make L.D. Crowther a "party plaintiff." The amendment did not conform to the leave granted, if any, and was, therefore, filed without leave.
Section 11361, General Code, permits an amendment to a petition, without leave of court, within ten days after demurrer. In this case demurrers were filed but no amendment was filed within ten days thereafter. As there is no right to file an amended petition without leave after such ten-day period (31 Ohio Jurisprudence, 917, Section 322), it is apparent that the relator in the instant action had no right to file his amended petition without first obtaining leave of court. Fountain, Recr., v. Pierce, 123 Ohio St. 609, paragraph 1 of the syllabus, 176 N.E. 444; 30 Ohio Jurisprudence, 805, Section 75; 31 Ohio Jurisprudence, 925, Section 329; Archdeacon, Admr., v. Cincinnati Gas Electric Co., 76 Ohio St. 97, 81 N.E. 152.
The amended petition not having been properly filed, it could have been stricken from the files. Newburg Petroleum Co. v. Weare, 44 Ohio St. 604, at 609, 9 N.E. 845; 31 Ohio Jurisprudence, 886, Section 295.
Furthermore, assuming that leave to amend was granted, the court could have dismissed the proceeding upon its own motion, since the amended petition as filed did not conform to the leave granted. 14 Ohio Jurisprudence, 334, Section 18.
However, the amended petition was not stricken from the files by the court. Instead the journal entry states that the court "of its own motion strikes the petition from the file and dismisses this action without prejudice, and sets aside the leave heretofore announced from the bench to substitute another as relator and the leave granted to amend the petition." (Italics ours.) This was done because the "action was instituted herein by relator as a taxpayer without first making written demand upon the prosecuting attorney to bring the action and without relator having first given security for the payment of the costs of the action" as required by Sections 2921 and 2922, General Code.
Although Section 11614 et seq., General Code, require security for costs, a defendant may waive those requirements by pleading or demurring. 11 Ohio Jurisprudence, 125, Section 159; 8 A. L. R., 1510. In this instance the securing of costs, the giving of a written request to the prosecuting attorney and his refusal to bring suit, are prerequisites or conditions precedent to the right of the taxpayer to maintain an action. Section 2922, General Code; 39 Ohio Jurisprudence, 11, 13, Sections 5 and 6. Being statutory conditions precedent to the right of the taxpayer to bring suit, they were not waived by the action of the respondent in demurring to the petition.
The action of the court, in ignoring the amended petition improperly filed and dismissing the petition for the failure of the relator to comply with conditions precedent, was not erroneous, and its judgment is therefore affirmed.
Judgment affirmed.
WEYGANDT, C.J., TURNER, WILLIAMS, MATTHIAS, HART, ZIMMERMAN and BETTMAN, JJ., concur.