STATE Ex Rel LIPMAN v. MACK

This is an original action in this court, whereby the relator seeks to compel a judge of the Court of Common Pleas to enter judgment of dismissal of an action without prejudice to future proceedings. The action might properly be termed procedendo, but the Supreme Court has recognized mandamus as a proper remedy under the instant circumstances. State, ex rel. Cash, v. Rose,Judge, 136 Ohio St. 143, 24 N.E.2d 455. The issues are of law created by demurrer to the petition.

The difficulty between relator and respondent grows out of a precedent stipulation imposed by the court upon relator requiring the payment of costs before the entry of dismissal would be entered. No such discretionary power lies in the court prior to submission of the cause to court or jury. See Section 11586, General Code; State, ex rel. Cash, v. Rose, Judge, supra; andState, ex rel. Strong, v. Cook, Clerk, 124 Ohio St. 478,179 N.E. 352, 79 A.L.R., 684.

"A judgment for costs may, of course, be rendered." State, exrel. Cash, v. Rose, Judge, supra, at page 147.

The absence of any requirement as to the prepayment of costs in cases similar to that here involved is made noticeable by such requirement under other procedural steps in litigation. Section 11361, General Code, provides:

"Within ten days after a demurrer is filed, the adverse party may amend, without leave, on payment of costs since filing the defective pleading. Notice of filing an amended pleading shall be forthwith served upon the other party, who shall have the same time thereafter to answer, or reply thereto, as to an original pleading."

And in Section 11363, General Code, the court is given discretion to permit amendment "on such terms as it deems proper."

In Section 11360, General Code, amendment is permitted without leave, and no reference is made to prepayment of costs.

It would therefore seem clear that the Legislature fully appreciated the propriety and justice of requiring prepayment of costs under certain circumstances, and that its failure to so require prepayment was not due to mere oversight, but was studied and purposefully intended to operate only in the instances where such prepayment is specifically required.

For these reasons, the demurrer is overruled.

Demurrer overruled.

MATTHEWS, P.J., and HAMILTON, J., concur.