Bantz v. Rover

Ohio Circuit Courts

Bantz v. Rover

24 Ohio C.C. Dec. 201

DecidedJanuary 15, 1911

StatusPublished

This text of 24 Ohio C.C. Dec. 201 (Bantz v. Rover) is published on Counsel Stack Legal Research, covering Ohio Circuit Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bantz v. Rover, 24 Ohio C.C. Dec. 201 (Ohio Super. Ct. 1911).

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Opinion

SWING, J.

We think it was error in the court to dismiss the answer and cross petition of Adam Bantz on the ground that the “answer and cross petition is not verified by the signature of the attorney and does not show the name or seal of the notary public before whom it purports to have been signed by' Adam Bantz.” Under R. S. 5114 (Gen. Code 11863) the court should have permitted the pleading to have been amended. Cincinnati, H. & D. Ry. v. Bailey, 70 Ohio St. 88 [70 N. E. Rep. 900].

We are further of the opinion that the court should have sustained the demurrer to the original petition. But as no error is prosecuted to this judgment, this court can take no action in regard(to it.

The original action was evidently brought under R. S. 6202 (Gen. Code 10857), and asked for the construction of the will of Herman Rudolph Rover and for an accounting. Adam Bantz, as guardian of Hedwig Bantz, was not entitled to bring such an action; He had no, trust to administer under said will and therefore could not maintain such an action. Collins v. Collins, 19 Ohio St. 468; Corry v. Fleming, 29 Ohio St. 147. But in an action for partition and for an accounting between the parties the will could be construed and the rights of all the parties could be adjusted. Lasure v. State, 19 Ohio St. 51; Linton v. Laycock, 33 Ohio St. 128; Patton v. Patton, 39 Ohio St. 590.

Judgment reversed and cause remanded for further proceedings.

Qiffen and Smith, JJ., concur.

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SWING, J.

We think it was error in the court to dismiss the answer and cross petition of Adam Bantz on the ground that the “answer and cross petition is not verified by the signature of the attorney and does not show the name or seal of the notary public before whom it purports to have been signed by' Adam Bantz.” Under R. S. 5114 (Gen. Code 11863) the court should have permitted the pleading to have been amended. Cincinnati, H. & D. Ry. v. Bailey, 70 Ohio St. 88 [70 N. E. Rep. 900].

We are further of the opinion that the court should have sustained the demurrer to the original petition. But as no error is prosecuted to this judgment, this court can take no action in regard(to it.

The original action was evidently brought under R. S. 6202 (Gen. Code 10857), and asked for the construction of the will of Herman Rudolph Rover and for an accounting. Adam Bantz, as guardian of Hedwig Bantz, was not entitled to bring such an action; He had no, trust to administer under said will and therefore could not maintain such an action. Collins v. Collins, 19 Ohio St. 468; Corry v. Fleming, 29 Ohio St. 147. But in an action for partition and for an accounting between the parties the will could be construed and the rights of all the parties could be adjusted. Lasure v. State, 19 Ohio St. 51; Linton v. Laycock, 33 Ohio St. 128; Patton v. Patton, 39 Ohio St. 590.

Judgment reversed and cause remanded for further proceedings.

Qiffen and Smith, JJ., concur.

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24 Ohio C.C. Dec. 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bantz-v-rover-ohiocirct-1911.

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