INJUNCTION AGAINST PLACING CERTAIN TAXES ON THE DUPLICATE.

Court of Appeals for Wood County.

#### Isaac Shuler v. C. E. Stinebaugh, Auditor of Wood County.

Decided, October 22, *1913.*

*Action by Plaintiff and on Behalf of Others Similarly Situated,—To En~ join Placing Certain Taxes on the Duplicate—Not Open to Motion to Strike Out, When.*

Suit to enjoin the county auditor from placing on the duplicate taxes against the lands of the plaintiff and others similarly situated who are named in the petition, is not open to a motion to strike out all parts relative to parties other than the plaintiff, where the proposed action of the auditor would affect the plaintiff in the same manner as each of the classes of owners for whom he is assuming to act.

*F. P. Reigle,*for plaintiff.

*C. S. IIatfield*and *F. M. Pries,*contra.

Kinkade, J.

This action was brought in the court of common pleas to restrain the defendant, the auditor of Wood county, by injunction from placing upon the tax duplicate of Wood county certain taxes against the lands of plaintiff and some two hundred and eight other parties represented by plaintiff, and similarly situated, as the result of an alleged illegal order made by the board of equalization.

The defendant moved the court to strike out all parts of the petition relative to parties other than the plaintiff. This motion was overruled by the common pleas judge and, thereupon, in order that a final judgment might be entered in the ease, a demurrer was filed by the defendant, which was overruled by the court of common pleas, and the defendant not desiring to plead further, judgment was entered accordingly and the case appealed here.

The motion to strike from the petition is renewed here and is the sole question in issue, the defendant conceding that in *256so far at least as the plaintiff is concerned individually the petition does state a cause of action.

It is alleged that three classes of owners are affected by the alleged illegal order complained of, and the plaintiff by the allegations of his petition shows the order to be effective as to him in each of the three classes.

It is contended on behalf of the .defendant that, even though it should be conceded the order complained of was illegal, that notwithstanding this the plaintiff and the parties whom he seeks to represent in this action could not join in one suit and avoid the effect of the order, and that hence one can not appeal for all under Section 11257 of the General Code.

It is said in behalf of this position that, inasmuch as the effect upon the different defendants is different arising' out of this alleged illegal order, therefore their rights are so distinct and separate as that they may not join in a representative suit such as this.

We are of the opinion that the cases cited by counsel for the defendant, 29 O. S., 500, and 76 O. S., 112, do not sustain the proposition.

We think the law of Ohio upon this subject is clearly stated in paragraph nine of the syllabus in the case of *Upington, for Himself and Others,*v. *Oviatt, Treasurer, et al,*24 O. S., 232, which reads as follows:

“Two or more of the several owners of lots assessed for street improvement claiming the assessment to be for the same reason invalid as to each, may properly join in an action to restrain the collection of the assessment.

“When the parties thus similarly interested in the question are numerous, one may. sue on behalf of himself and all the others whom he is authorized to represent and who might otherwise rightfully join in the action.”

The motion to strike from the petition will be overruled, and to preserve the question presented by the demurrer, the demurrer will be overruled and the defendant will be granted leave to plead further, if he so desires.

Chittenden, J., and Bicharos. J., concur.'