ON MOTION FOR REHEARING
Decided Aug 28, 1933
By THE COURTThe above entitled cause is now being determined on motion foi rehearing presented by counsel for defendant.
We have carefully considered the motion for rehearing and the argument and analysis by counsel as set forth under seven separate hearings. In reality each and all revolve around the contention that the ao- '■ tion is a class suit and that the plaintiff’s-action and those he represents can rise no j higher than the weakest position of any of 1 the individuals represented.
On this theory attention is called to Ida Mae Boze as having violated a set-back restriction by more than eight feet, and this being a substantial violation of set-back restrictions it is fatal to plaintiff’s cause, even though the principal plaintiff might be entitled to relief if he had not attempted to join others with him as plaintiffs.
Even if it should be conceded that Ida Mae Boze violated the set-back restrictions in a substantial way, this would not be determinative of plaintiff’s right to injunction.
Sec 11257, GC, provides that when the question is one of a common or joint interest of many persons, or the parties are very numerous and it is impracticable to bring them all before the court, one or more may sue for the benefit of all. It is quite true that under a class action the rights of the class for whom the action is brought can rise no higher than that of the individual named as plaintiff, and this principle of law is very clearly announced in the case of Quinlan v Myers, 29 Oh St 509.
It is not the law where a plaintiff brings an action on behalf of himself and others' whom he claims to be similarly situated,he will be denied a remedy if otherwise en- j titled thereto merely because he happens; to have named one. or more individuals in j his class a gainst, whom a- good defense may be presented. The only effect of such a situation is to eliminate such defendants ’ as being of the class alleged, and no relief v can be granted to them.
This has a practical application in act-ions where the relief sought is joint and several, such -as enjoining illegal assessments and so forth.
Counsel for plaintiff cite the case of Stevens v Times Star, 72 Oh St, 112, as supporting their contention. We find no such announcement or reasoning in the case. It is very clearly announced in the syllabus and likewise in the opinion that the plaintiff Stevens was not entitled to a remedy in equity, and this because he was a party to the gambling transaction. At page 144 of the dictum, Judge Spear rendering the opinion, does say that a party to a gambling transaction may repent and rescind his contract and even recover his money, but this language merely refers to an action at law. The Supreme Court did not say, nor did it mean to say, that if it had been shown that the other individuals for whom plaintiff was seeking to bring the action Jaad also repented that thereby the right to injunction would have been shown. The idea intended to be conveyed by Judge Spear was that since the named plaintiff had only a right to recover fifty cents, the trial court was correct in rendering final judgment for the reason that it had no jurisdiction for that amount -since there was not the necessary allegation and showing as to the other plaintiffs whereby the sum might have been brought up to the jurisdictional amount.
The motion for rehearing will be overruled.
HORNBECK, PJ, KUNKLE and BARNES, JJ, concur.