663 N.E.2d 397 | Ohio Ct. App. | 1995
Lead Opinion
William Terrell appeals the trial court's dismissal of his complaint for lack of subject matter jurisdiction. We reverse and remand.
R.C.
"On complaint, in writing, signed by one or more taxpayers, containing distinct charges and specifications of wanton and willful neglect of duty or gross misconduct in office by the prosecuting attorney, and filed in the court of common pleas, the court shall assign the complaint for hearing and shall cause reasonable notice of such hearing to be given to the prosecuting attorney of the time fixed by the court for the hearing. At the time so fixed, or to which the court adjourns the hearing, such court shall hear the evidence adduced by the complainants and the prosecuting attorney. If it appears that the prosecuting attorney has willfully and wantonly neglected to perform his duties, or has been guilty of gross misconduct in office, the court shall remove him from office and declare such office vacant. Otherwise the complaint shall be dismissed, and the court shall render judgment against the losing party for costs."
In Ohio, a court of common pleas is a court of general jurisdiction. See Section
The Medina County Court of Common Pleas, however, was not the proper forum in which to bring the complaint. The appellee argues that venue did not lie in the Medina County Court of Common Pleas. We agree. Venue is established by meeting the requirements of Civ.R. 3(B). Under Civ.R. 3(B)(4), venue is proper in the county in which a public officer maintains his principal office if the suit is brought against the officer in his official capacity. Because Terrell's complaint was brought against the appellee in his official capacity and the appellee does not maintain his principal office in Medina County, venue did not lie in the Medina County Court of Common Pleas.
Although venue was not proper, the Medina County Court of Common Pleas erred by dismissing the complaint. Civ.R. 3(C)(1) does not mandate dismissal because of improper venue. State exrel. Schrader v. Vilevac (Sept. 28, 1994), Summit App. No. 16710, unreported, at 3, 1994 WL 527889. If venue was improper, then, as this court has stated, "[t]he proper procedure is to transfer the case to the proper forum within the state if one is available, pursuant to Civ.R. 3(C)(1)." Singleton v. Denny's,Inc. (1987),
Judgment reversed and cause remanded.
QUILLIN, P.J., and DICKINSON, J., concur separately.
Concurrence Opinion
I concur with the opinion of the majority. I write separately only to note that improper venue is waived if not properly raised. In this case, the trial court sua sponte dismissed plaintiff's claim before defendant had an opportunity to raise the defense of improper venue.
QUILLIN, P.J., concurs in concurring opinion. *792