State Ex Rel. Gannon v. Lander

By the Court. This is an action in mandamus, originating in the Court of Appeals of Cuyahoga county. The relator claimed in his petition to have been illegally removed by the respondent Lander from the position of superintendent of road repair work in Cuyahoga county, to which he had been regularly appointed under the state civil service law. The respondent answered that the work of relator was seasonal in character; that the relator was temporarily relieved from duty October 20, 1923, effective November 1, 1923, during the winter season only, and that this temporary suspension was fully approved by the civil service commission; that relator performed no services during such suspension, nor did he request employment during that time, but by his silence and absence fully acquiesced in such temporary suspension; that upon the return of weather suitable for road work, in the following April, relator was duly notified in writing, April 28, 1924, that plans were then being per *265 fected to renew road work, and was requested to report for duty not later than May 10 if he desired employment; that relator did not report for duty, nor did he reply to the written request so to do. This action was begun in the Court of Appeals April 8, 1924, more than five months after the temporary suspension of relator took effect. The Court of Appeals, on December 31, 1924, on motion of relator, appointed a special master to take the evidence and report the same in writing to the court. At the hearing before the master certain facts were agreed upon, letters were identified and offered in evidence, a decree of the Court of Appeals in favor of relator, rendered in a former proceeding in mandamus between these same parties during the preceding year, 1923, being case No. 4886 in the Court of Appeals, was submitted before the master, and witnesses were examined on both sides. The master made a full report in writing to the court embracing all evidence submitted. The Court of Appeals, on June 1, 1925, found, upon consideration' of the pleadings and evidence, that the relator was not entitled to the relief prayed for, and dismissed his petition at his costs. The evidence in the record is quite sufficient to sustain the action of the Court of Appeals, and the judgment of that court will therefore be affirmed. Judgment affirmed. Marshall, C. J., Jones, Matthias, Day, Allen, Kinkade and Robinson, JJ., concur.