Meyers v. Hoops

162 N.E.2d 154, 81 Ohio Law. Abs. 352, 1954 Ohio App. LEXIS 783

Opinion

OPINION

By THE COURT:

Submitted on motion of plaintiffs-appellants to dismiss the cross appeal filed by defendant.

In the court below, plaintiffs sued for breach of contract, and the defendant filed a cross-petition asking for rescission. The trial court dismissed both the petition and the cross-petition. Plaintiffs appealed on law and fact. Subsequently the defendant appealed on law and fact. Plaintiffs contend that defendant’s appeal is from only that part of the judgment denying rescission, and that a partial appeal may not be taken. The notice of appeal filed by defendant is “from the judgment of the Common Pleas Court entered on the 19th day of October, 1954, dismissing the answer and cross-petition of defendant.” As we view it, the appeal filed by defendant is from the judgment, and cannot be construed as a partial appeal. The defendant has expressed a willingness to strike the words: “dismissing the answer and cross-petition of defendant,” and leave is granted defendant to amend such notice by striking these words.

Motion to dismiss the cross-appeal is overruled.

WISEMAN, PJ, MILLER and HORNBECK, JJ, concur.