
    STATE ex BOSTWICK v MILLER, et
    Ohio Appeals, 2nd Dist, Franklin Co
    Nos 3051 & 3059.
    Decided Aug 26, 1940
    Cowan, Adams & Adams, Columbus, for plaintiff.
    . Thomas J. Herbert, Atty. General, Columbus, for Ta,x Commission.
    Perry L. Graham, Asst. Atty. General; Columbus, for Tax Commission.
   OPINION

BY THE COURT:

The above entitled cause is now being. determined on plaintiff’s general demurrer to the answer of William S. Evatt, Tax Commissioner of the State of Ohio, on the ground that said answer does not state a defense to the cause of action set out in the plaintiff’s petition. Counsel for plaintiff in their appended briefs in support of the demurrer state in substance that the only question presented by the Tax Commissioner’s answer is whether there was an adequate remedy at law from the Tax Commissioner’s order of June 3, 1936, whrein said Commission determined that the furnishing for compensation of motion picture films to exhibitors was not a sale of tangible property as defined by the Ohio statutes; and. further, it is the claim of defendant that since no appeal was taken from such determination as then authorized by §5611-1 et seq GC, it was a final adjudication of the matter which cannot be disturbed by mandamus inasmuch as the appeals provided for in said section provided an adequate remedy at law. Counsels’ subsequent argument and citation of authorities is directed entirely to this question. If counsel is corrept in their statement that no other question is presented through the answer, we would be inclined to sustain the demurrer on the authorities cited.

However, we think the answer of the Tax Commissioner is broader than is claimed by counsel for plaintiff.

It is our conclusion that the answer in addition to the defense of adequate remedy at law traverses the allegations of the petition in a manner that would constitute a denial of certain pertinent allegations of the petition.

For this reason the demurrer will be overruled.

Entry may be prepared accordingly.

HORNBECK, PJ. and BARNES, J., concur.

GEIGER, J., not participating.  