
    (Eighth Circuit — Cuyahoga Co., O., Cir’t Court,
    Jan. Term, 1899.)
    Before Caldwell, Marvin and Hale, JJ.
    STATE ex rel. HARMS et al. v. TRUSTEES OF EUCLID TOWNSHIP.
    
      Mandamus to aompel board to aet — Averment of pressure of other business as a defense—
    Where a petition was filed with the township trustees asking for the incorporation of certain territory as a village, under sec. 1561a, R. S., and the trustees failed at the same session of their body to act on it, and seven days thereafter an action is instituted in court, asking for a writ of mandamus ordering the trustees to act on such petition, to which the trustees answer averring that one of the reasons why they did not act on the petition at that session was that they had so much other business before them that such petition was not reached at that session, but that it would be taken up at the next regular session, such answer states a sufficient defense as against a demurrer thereto.
    Mandamus.
   MARVIN, J.

The State of Ohio on relation of Louis Harms et al. against the trustees of Euclid township, is a proceeding in mandamus and comes to us upon a demurrer to the answer.

The relators set out in their petition that they filed, with the trustees of Euclid township, on March 25, 1899, a petition under sec. 1561a, Rev. Stat., found in 92 O. L., 383. That petition contained a prayer that the trustees of the township submit the question of whether a certain part of Euclid township should be incorporated as a village.

The statute requires that such petition to the trustees be accompanied by an accurate description of the territory proposed to be incorporated, and an accurate map of the territory proposed to be included within the municipal corporation.

The petition filed here, states that such petition was filed with the trustees and was accompanied by such map.

Alex. Hadden, Counsel for Plaintiffs.

Kaiser and Taft, County Solicitors, for Defendants.

The trustees answer in a somewhat elaborate way, but, among other things, they say that no accurate map was filed with the petition which was filed with them. They go on to give certain inaccuracies that they say were tobe fcund in the map — they were there. They set up a good many things in the answer, which might lead one to suppose that the map was more nearly accurate than might oe supposed if they had started by saying that no accurate map was filed ; but they say that an accurate map should be filed, and the statute says that there should be. They say further, that the petition was filed on March 25, 1899. This suit’ was brought seven days thereafter — the first or second day ofApril. Defendants say in their answer, they were so crowded with work, they had so much to do of other business, that they were unable to consider this petition at that meeting, and that for that reason alone, they postponed action to another meeting.

We are of opinion that with a demurrer to that answer, admitting those allegations to be true, that bo accurate map was filed, and that the trustees for the sole reason that .they- have not had time to consider this, failed to do it, that that answer is good as against a demurrer, although there are many things in the answer, as has been said, that would not make a strong answer to the petition.

But we think the safe and proper thing — and, therefore, what we do, is to overrule this demurrer to the answer and remand the case for trial.  