Mayer Co. v. Goldenberg

1 Ohio N.P. 189

• Court: Ohio Superior Court, Cincinnati
• Decided: December 15, 1894
• Status: Published

Opinion

Smith, J.

The plaintiff has filed a motion to strike from the answer of the defendant certain allegations irrelevant to the issue; and the defendant justifies their intention on the ground that they are in answer to certain allegations contained in the petition.

The allegations in the petition to which the irrelevant matter in the answer is filed are themselves irrelevant, and could have been stricken from the petition upon the motion of the defendant.

The defendant, by answering over, does not acquire the right to insert irrelevant averments in the answer, because an averment in the petition which is immaterial and irrelevant, raises no issue and is entirely invalid. It is only the material allegations of the petition which the defendant must answer, and which, upon his failure to answer, are taken to be admitted by him. Immaterial and irrelevant allegations in the petition need not, and indeed can not, be proven against the defendant, and any averments in the answer of the defendant intended to meet such allegations are always irrelevant and immaterial, and, upon motion, should be stricken out: Pomeroy’s Code Remedies, sections 578, 617.

Motion granted.