
    STATE, ex rel. ROTH et, Plaintiff, v. LEWIS, Mayor et, etc., Defendants.
    Ohio Appeals, Eighth District, Cuyahoga County.
    No. 23556.
    Decided July 8, 1955.
    Lawrence Landskroner, Cleveland, for plaintiff.
    Ford, Reece, Howland & Wegman, Cleveland, for defendants.
    (HUNSICKER, PJ, DOYLE, J, of the Ninth District, MIDDLETON, J, of the Third District, sitting by designation in the Eighth District.)
   OPINION

Per CURIAM:

This original action in mandamus came into this court on June 15, 1955, for hearing upon its merits, an alternative writ of mandamus having theretofore been allowed on June 6, 1955, by all of the judges of the Eighth District Court of Appeals. The Village of Pepper Pike, through its attorneys, thereupon filed a demurrer to the petition. Counsel for the petitioning taxpayers then requested permission of the court to amend his petition.

Oral presentation of various aspects of the issues were made to the court, whereupon the defendants were granted permission to withdraw the demurrer to the petition and the answer filed herein, and their attorneys were asked by the court to file, first, a written motion to dismiss the petition as amended, and to strike it from the files, for the reason that an action in mandamus covering the same matters raised by the within petition had previously been filed in the Court of Common Pleas of Cuyahoga County and was still pending in that court; and, second, to refile a written demurrer to the petition as amended, which demurrer would be considered only in the event the motion had been denied. The request of counsel for plaintiff to amend the petition was granted.

Counsel for all of the parties then waived further oral discussion and oral argument upon 'the matters presented, agreed to file written briefs, and, in that way, give to the court the questions raised by the motion and the demurrer.

The first matter to consider is the motion filed by the defendants, who say that the same taxpayer-relators in this action, pursuant to §733.59 R. C., on May 3, 1955, requested the village solicitor, by letter, to take certain “appropriate action” concerning the matters set forth in the mandamus action now before this court.

The village solicitor stated that on May 27, 1955, in accord with that request, he filed in the Common Pleas Court of Cuyahoga County, Ohio, a petition for a writ of mandamus against the same parties, and covering the same matters complained about by the taxpayers in the instant action; that service of summons was had in such' action prior to the obtaining of service herein, and that an alternative writ was thereupon issued in such prior action; that such action in the Court of Common Pleas is a valid pending action, since it has not been disposed of and is now awaiting trial in such court.

This court has before it all of the facts concerning this prior action in the Court of Common Pleas, we find that such action is against the same parties (with exception of the village solicitor), seeks the same relief as is sought in the instant action, and that such action was filed by the village solicitor at the request of the same parties who are all relators herein.

The first action in mandamus was filed in the Court of Common Pleas, which has jurisdiction to grant or deny all of the relief sought in the instant action.

Upon due consideration of the matters presented by the instant motion to dismiss the petition in mandamus filed in this court, this court grants such motion and orders such petition stricken from the files.

Exceptions granted.

HUNSICKER,' PJ, DOYLE, J, MIDDLETON, J, concur.  