
    SWEDERSKY, SR. et v BD. OF ED. OF GREEN TWP. RURAL SCHOOL DIST., HAMILTON COUNTY et
    Ohio Appeals, 1st Dist, Hamilton Co
    No 5983.
    Decided June 9, 1941
    George Mountel; Nicholas Bauer, Cincinnati, for appellants.
    Carl W. Rich, Cincinnati; Carson Hoy. Cincinnati, and Edward Strasser, Cincinnati, for appellees.
   OPINION

BY THE COURT:

The order appealed from is ambiguous. In it; ‘ is a recital that the court sustains the motion for judgment on the pleadings and that “the action be and the same is hereby dismissed at the plaintiff’s costs”, but this is" followed by a provision granting the plaintiff five days in which to amend. Of course, if the action had been dismissed, the court would have been without jurisdiction to allow an amendment.

In view of the positive language of dismissal and the fact that all parties have considered the order as final, we have concluded to so consider it.

The case comes before the court on the motion for judgment on the pleadings. The parties have treated this rhotion as a demurrer to the petition and the court will do likewise without, however, approving the practice of using a motion for judgment as a substitute for a demurrer.

We have reached the conclusion that this petition does not state a cause of action. It is sought to invalidate an election by enjoining the duly constituted officials from acting upon the result announced by the board of elections as the result of the official count. It is, in substance, a contest of an election for which the law affords a plain, adequate and complete remedy, of which the plaintiff failed to avail himself.

The demurrer is sustained.

MATTHEWS, PJ., ROSS and HAMILTON, JJ., concur.  