
    No. 699
    AKRON (City) v. RENNER CO.
    Ohio Appeals, 9th Dist., Summit County
    No. 807.
    May 26, 1924
    801. MUNICIPAL LAW — A city, desiring to prosecute a suit to compel the performance of an agreement to improve is not precluded from doing so by the fact that it delays bringing the suit until after a taxpayer has brought suit for the same purpose.
    Attorneys — H. M. Hagelbarger, Law Dir., and C. T. Moore, Asst., for City; Greenberger & Hotchkiss, for Renner Co.; all of Akron.
   WASHBURN, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

In 1919, the City of Akron and two railroad companies made an agreement to improve a portion of a street in said city. In 1922, the agreement not being performed, the Renner Products Co. requested the director of law of. said city to commence an action to compel the carrying out of the agreement to make the improvement. On Jan. 2, 1923, the Renner Products Co., as a taxpayer, brought an action to compel the making of said improvement. Thereafter, on March 1, 1923, this action was commenced by the city, by its director of law, in the same court, against the same railroad defendants to accomplish the same result. Thereupon said taxpayer at its own request was made a party defendant in this suit and filed a motion asking the court to strike from the files the city’s petition and to dismiss its action. The motion was granted by the Common Pleas and the city prosecuted error to the Court of Appeals, which held:

The sole object of the action that a taxpayer may bring under 4314 GC. is to protect the City, which is the real party in interest. The taxpayer by bringing the suit does not super-cede and take the place of all the officers of the city; the City may do anything that it could lawfully do if the suit had not been brought. Thereafter the City may join in that suit or it may bring a separate suit to accomplish the same result, and if the city does the latter, the court may not on motion of the taxpayer dismiss the suit of the City. Judgment reversed and cause remanded.  