
    Dayton City School District v. Cloud, Auditor, et al.
    (No. 136615
    Decided January 7, 1971.)
    Common Pleas Court of Montgomery County.
    
      Mr. James W. Drake, for plaintiff.
    
      Mr. Paul W. Brown, attorney general, for defendants.
   McBeide, J.

The instant action is for a declaratory judgment brought by the Dayton School District against Roger Cloud, State Auditor, and Paul W. Brown, Attorney General, in their official capacities. Both officers maintain their principal office at Columbus in Franklin County.

On December 18, 1970, a motion was filed to dismiss for (a) lack of jurisdiction and (b) improper venue. No response was filed by the complainant to the motion.

There is no issue of jurisdiction. Civil Rule 3 (B) initially places venue in “any county.” The question here is solely one of venue, or the proper county, if objection is made immediately to the county selected.

Where a public officer is involved the appropriate venue rule appears in Civil Rule 3 (B) (4). It places venue in

“(4) A county in which a public officer maintains his principal office if suit is brought against him in his official capacity.”

Civil Buie 3 (B) (4) is, in effect, the same as E. C. 2307.35; however', this being a procedural matter it is clear that the statute has been repealed and has been substituted by Civil Eule 3 (B) (4). The fact that the two are not inconsistent does not preserve the life of E. C. 2307.35. Eeliance must be made upon the Civil Eule and not upon the former statute.

The within action against the auditor and the attorney general is properly venued in Franklin County.

The relief requested by defendants is dismissed. However, Civil Eule 3 (C) (1) provides that in this situation—

“* * * (T)he court shall transfer the action to a county stated to be proper in subdivision (B) of this rule.”

Under the circumstances of this case, the court construes the language of Civil Eule 3 (C) to be mandatory, if the purpose and policy expressed in Civil Eule 1 (A) and 1 (B) are to be carried out.

It is therefore ordered that the within action be and hereby is transferred to the Court of Common Pleas of Franklin County, Ohio.

Since this is the first instance in this court of such a transfer under the new rules administrative suggestions may be in order for the benefit of the clerk in view of the absence of supervisory rules.

1. The file and all original papers, including this order, must be delivered to the Clerk of Courts of Franklin County, Ohio. This may be delivered by the Sheriff or by registered mail. The existing costs, including those for delivery or mail to Franklin County, Ohio, shall be computed and reported in the file.

2. ’ photocopy of all filings, including this order and proof of delivery to Franklin County, Ohio, should be preserved by the clerk of Montgomery County, Ohio.

3. For all other purposes in this county the case should be listed and reported as terminated and filed with the closed cases.

4. Of necessity the case must be given a new number in Franklin County, Ohio, and reported as a new case.

Since this is the first transfer of this character under the new rules and involves public agents, no costs or attorney fees are assessed at this time under Civil Buie 3 (C) (2).  