Reck v. Beachler

Ohio Court of Appeals

Reck v. Beachler

118 N.E.2d 921, 67 Ohio Law. Abs. 63

CourtOhio Court of Appeals

DecidedMarch 12, 1952

DocketNo. 465

StatusPublished

Cited by1 cases

This text of 118 N.E.2d 921 (Reck v. Beachler) 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

Reck v. Beachler, 118 N.E.2d 921, 67 Ohio Law. Abs. 63 (Ohio Ct. App. 1952).

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Opinion

OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Miami County.

, Plaintiff in her petition charged the defendant with malpractice. The defendant filed a motion to make the petition definite and certain, which was sustained. The plaintiff filed an amended petition which did not fully comply with the order of the court. Defendant filed a motion to strike the amended petition from the files on the ground that the amended petition did not comply with the previous order of the court. The motion to strike was sustained, and the plaintiff electing not to plead further, the action was dismissed.

A motion to strike from the files for failure to comply with a previous order is a recognized procedure. An order dismissing the action of plaintiff for failure to comply with a former order to make petition definite and certain, the plaintiff electing not to plead further, will not be reversed unless it is clearly shown that the court abused its discretion. Rudd v. City of Reading, 64 Oh Ap 308; Vol. 31 O. Jur., page 885, Sec. 293; Vol. 2 O. Jur., Part II, pages 1068, 1070, Sec. 591. An abuse of discretion is not shown by the mere fact that the members of the reviewing Court would have exercised that discretion differently if sitting as a trial court. Vol. 2 O. Jur., Part II, Page 1063. We cannot say that the trial court abused its discretion in sustaining the motion to make definite and certain and in dismissing the action for failure to comply with the order.

Judgment affirmed.

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

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OPINION

By THE COURT:

This is an appeal on questions of law from the judgment of the Common Pleas Court of Miami County.

, Plaintiff in her petition charged the defendant with malpractice. The defendant filed a motion to make the petition definite and certain, which was sustained. The plaintiff filed an amended petition which did not fully comply with the order of the court. Defendant filed a motion to strike the amended petition from the files on the ground that the amended petition did not comply with the previous order of the court. The motion to strike was sustained, and the plaintiff electing not to plead further, the action was dismissed.

A motion to strike from the files for failure to comply with a previous order is a recognized procedure. An order dismissing the action of plaintiff for failure to comply with a former order to make petition definite and certain, the plaintiff electing not to plead further, will not be reversed unless it is clearly shown that the court abused its discretion. Rudd v. City of Reading, 64 Oh Ap 308; Vol. 31 O. Jur., page 885, Sec. 293; Vol. 2 O. Jur., Part II, pages 1068, 1070, Sec. 591. An abuse of discretion is not shown by the mere fact that the members of the reviewing Court would have exercised that discretion differently if sitting as a trial court. Vol. 2 O. Jur., Part II, Page 1063. We cannot say that the trial court abused its discretion in sustaining the motion to make definite and certain and in dismissing the action for failure to comply with the order.

Judgment affirmed.

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

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Bluebook (online)

118 N.E.2d 921, 67 Ohio Law. Abs. 63, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reck-v-beachler-ohioctapp-1952.

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