Guy v. Dunn

Duffy, J. The plaintiffs, appellants herein, who are township trustees, brought this action questioning the right of the city of Columbus to annex part of Franklin Township and to prevent the transfer of the territory on the tax duplicate by the county auditor. The area in question has been subject to litigation in the courts as there were attempts to annex part of the territory which was already part of the land involved in an incorporation proceeding. See Hoye v. Schaefer, Recorder, 166 Ohio St., 277, the subsequent consideration of the same cause by the Court of Common Pleas of Franklin County, Ohio (77 Ohio Law Abs., 170), and the consideration given by this court (109 Ohio App., 489, motion to certify record overruled). In the case under consideration, the trial court sustained a demurrer to the original petition and ordered an amended petition stricken from the file. The plaintiffs say that the questions to be decided by this court on appeal are: *273 “If the Board of Township Trustees of Franklin Township had jurisdiction of the subject matter, is this jurisdiction exclusive? “Does the board of township trustees lose jurisdiction by failure of the proceedings on the merits? ‘ ‘ Can any other governmental board or units acquire jurisdiction and proceed with adverse proceedings while the board of township trustees has jurisdiction of the subject matter?” In consideration of these questions it appears that on April 5, 1954, an incorporation proceeding was commenced with the Board of Township Trustees of Franklin Township for the incorporation of that township, and that subsequent thereto part of the same area was the subject of annexation proceedings in which the city of Columbus annexed a part of the township territory. See State, ex rel. Maxson, v. Board of County Commissioners of Franklin County, 167 Ohio St., 458. In the case involving the incorporation proceeding, this court decided that it would not be just, right and equitable to grant the petition seeking the incorporation of Franklin Township (Hoye v. Schaefer, supra [109 Ohio App., 489]), and, although the incorporation proceeding was commenced first, it would appear that the annexation proceedings were the first to be completed and, as there was concurrent jurisdiction in the Board of Township Trustees and the Board of County Commissioners, it would appear that the Board of Township Trustees lost its preferential position when the incorporation proceeding was dismissed on the merits. See Hoye v. Schaefer, supra, and State, ex rel. Ferris, v. Shaver, Recorder, 163 Ohio St., 325. The judgment of the Court of Common Pleas is affirmed. Judgment affirmed. Duffey, P. J., and Bryant, J., concur.-