Hieatt v. Simpson

22 Ohio C.C. Dec. 447

• Court: Ohio Circuit Courts
• Decided: April 10, 1909
• Status: Published

Opinion

GIFFEN, P. J.

The Supreme Court [Hieatt v. Simpson, 78 Ohio St. 446] having rendered the judgment that this court should have rendered [Hieatt v. Simpson, 28 O. C. C. 590 (4 O. L. R. 136)], to wit, sustained the demurrer to the answer, and remanded the cause to this court for further proceedings according to law, the authority to allow an amendment to the answer, under R. S. 5116 (Gen. Code 11365), is the same as if this court had, instead of overruling the demurrer, sustained the same. The case of Covington & Cin. Bridge Co. v. Sargent, 27 Ohio St. 233, and other like cases, apply only where final judgment has been rendered.

The amendment to the answer presented contains facts sufficient to show a forfeiture under R. S. 2852 (Gen. Code 5688), of at least the ten and one-half acres of land sold to Van Tress.

The payment of taxes under a mistake of law with full knowledge of the facts, can not, when made voluntarily, be recovered.

It is unnecessary to now determine how much, if any, was so paid, or whether the other real estate was forfeited to the persons next entitled thereto in remainder, so long as the proposed amendment states a good though partial defense. If counsel for defendants elect to accept the offer of plaintiff to allow a lien for taxes paid by them there will be no difficulty in entering a decree to that effect after proper pleadings are filed.

Leave to file amendment granted.

Smith and Swing, JJ., concur.