Mt. Ida School, Inc. v. Clark

Ohio Court of Appeals

Mt. Ida School, Inc. v. Clark

177 N.E. 604, 39 Ohio App. 389, 10 Ohio Law. Abs. 380, 1931 Ohio App. LEXIS 439

DecidedJune 15, 1931

StatusPublished

This text of 177 N.E. 604 (Mt. Ida School, Inc. v. Clark) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Mt. Ida School, Inc. v. Clark, 177 N.E. 604, 39 Ohio App. 389, 10 Ohio Law. Abs. 380, 1931 Ohio App. LEXIS 439 (Ohio Ct. App. 1931).

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Opinion

*381 LEVINE, PJ.

As we view it, this fact alone is sufficient 'to establish an allegation that there was irregularity in the obtaining of the judg-' ment. It would have been entirely possible' for the trial court to have ordered the petition to correspond with the evidence, so that the petition would contain the allegat-ions of irregularity in the obtaining of the judgment.

Since the petition was at no time amended, we are strongly inclined to the view that, the better practice would be to amend the petition substituting the allegation of irregularity for the present allegation of fraud practiced in the obtaining of the judgment, or adding the same to the allegation already found in the petition. Had that been done we could not, under the law, disturb the judgment rendered in the case.

Under the state of the pleadings and the evidence introduced thereunder, to substantiate the same, the court was powerless to render the judgment which it did.

The trial court wrote a short memorapdum, setting forth its reasons for granting the prayer of the petition for a vacation of the judgment, stating that it was upon the statutory ground that there was irregularity in the obtaining of the judgment. This, the court was powerless to do, unless it ordered under its broad powers an amendment to the petition, to make the allegations of same correspond to the evidence. The judgment is therefore reversed and cause remanded for further proceedings according to law. ,

WEYGANDT and VICKERY, JJ, concur.

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*381 LEVINE, PJ.

As we view it, this fact alone is sufficient 'to establish an allegation that there was irregularity in the obtaining of the judg-' ment. It would have been entirely possible' for the trial court to have ordered the petition to correspond with the evidence, so that the petition would contain the allegat-ions of irregularity in the obtaining of the judgment.

Since the petition was at no time amended, we are strongly inclined to the view that, the better practice would be to amend the petition substituting the allegation of irregularity for the present allegation of fraud practiced in the obtaining of the judgment, or adding the same to the allegation already found in the petition. Had that been done we could not, under the law, disturb the judgment rendered in the case.

Under the state of the pleadings and the evidence introduced thereunder, to substantiate the same, the court was powerless to render the judgment which it did.

The trial court wrote a short memorapdum, setting forth its reasons for granting the prayer of the petition for a vacation of the judgment, stating that it was upon the statutory ground that there was irregularity in the obtaining of the judgment. This, the court was powerless to do, unless it ordered under its broad powers an amendment to the petition, to make the allegations of same correspond to the evidence. The judgment is therefore reversed and cause remanded for further proceedings according to law. ,

WEYGANDT and VICKERY, JJ, concur.

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Bluebook (online)

177 N.E. 604, 39 Ohio App. 389, 10 Ohio Law. Abs. 380, 1931 Ohio App. LEXIS 439, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mt-ida-school-inc-v-clark-ohioctapp-1931.