State Ex Rel. Houghton v. PethtelState Ex Rel. Houghton v. Pethtel
Prom the journal entry of the Court *22 of Appeals and statements of counsel in their briefs filed in this court it appears that leave was granted “tо substitute L. D. Crowther for Stanley L. Houghton, as relator.” However, the amended petition recites that a motion wаs allowed to make L. D. Crowther a “party plaintiff.” The аmendment did not conform to the leave granted, if any, and was, therefore, filed without leave.
Section 11361, General Code, permits an amendment to a petition, withоut leave of court, within ten days after demurrer. In this casе demurrers were filed but no amendment was filed within ten days thereafter. As there is no right to file an amended petition withоut leave after such ten-day period (31 Ohio Jurisprudenсe, 917, Section 322), it is apparent that the relator in the instant action had no right to file his amended petition withоut first obtaining leave of court.
Fountain, Recr.,
v.
Pierce,
The amended pеtition not having been properly filed, it could have bеen stricken from the files.
Newburg Petroleum Co.
v.
Weare,
Furthermore, assuming that leave to amend was granted, the court could have dismissed the proceeding upon its own motion, since the amended petition as filed did not conform to the leave grаnted. 14 Ohio Jurisprudence, 334, Section 18.
However, the amеnded petition was not stricken from the files by the court. Instеad the journal entry states that the court “of its own motiоn strikes the petition from the file and dismisses this action without prejudice, and sets aside the leave heretofore announced from the bench to substitute another as relator аnd the leave granted to amend the petition.” *23 (Italiсs ours.) This was done because the “action was instituted hеrein by relator as a taxpayer without first making written demаnd upon the prosecuting attorney to bring the actiоn and without relator having first given security for the payment of the costs of the action” as required by Sections 2921 and 2922, General Code.
Although Section 11614 et seq., General Code, require security for costs, a defendant may waive those requirements by рleading or demurring. 11 Ohio Jurisprudence, 125, Section 159; 8 A. L. R., 1510. In this instancе the securing of costs, the giving of a written request to the prosecuting attorney and his refusal to bring suit, are prerеquisites or conditions precedent to the right of the taxpayer to maintain an action. Section 2922, General Code; 39 Ohio Jurisprudence, 11, 13, Sections 5 and 6. Being statutory conditions precedent to the right of the taxpayer to bring suit, they were not waived by the action of the rеspondent in demurring to the petition.
The action of thе court, in ignoring the amended petition improperly filed and dismissing the petition for the failure of the relator tо comply with conditions precedent, was not errоneous, and its judgment is therefore affirmed.
Judgment affirmed.