
    No. 55
    STATE ex TEPPER et al v. DUFFY; Director
    Ohio Appeals, 4th Dist., Franklin Co.
    No. 1205.
    Decided Sept. 29, 1924
    Allread, Ferneding and Mauck, JJ., sitting.
    747. MANDAMUS—Not appropriate action when there is provision for adequate remedy at law.
    Published only in Ohio Law Abstract
    Attorneys—Eugene Morgan, for Tepper; Chas. Leach and Louis Laylin, for city; all of Columbus.
   ALLREAD, J.

Epitomized Opinion

The original action was one in mandamus by Joseph Tepper against Wm. Duffy, director public service of Columbus; Tepper as a subcontractor perfected a mechanic’s lien, notification of which was sent to principal contractor who failed to object to the validity of the lien within time prescribed by statute. The city in paying off the principal contractor, withheld an amount sufficient to satisfy Tepper; who at once sought to mandamus the city. Demurrer to petition was overruled, and was later sustained. Final judgment was rendered dismissing Tepper’s claim.

In affirming the common pleas the Court of Appeals held: The main suestion in this case is whether or not a mandamus action is appropriate when there is at law an adequate remedy, Mechnic’s lien statute. 8331 GC. provides for an action at law in a case of this kind, therefore we are of the opinion that mandamus does not lie in this case.

The fact that the principal contractor was joined with Tepper as party plaintiff, in common pleas was not prejudicial; has no effect on the questions presented in this case even though principal contractor had filed intervening cross petition against city for amount retained by it.  