Smith's Administrators v. Commissioners of Licking County

Ohio Supreme Court

Smith's Administrators v. Commissioners of Licking County

2 Ohio 312

Ohio Supreme Court·Decided December 15, 1826·Published

Opinion

By the Court :

There is a difference of opinion among the judges as to the validity of the plea. But as they are unanimous in the opinion [289]*289that the judgment was erroneously entered, they do not decide upon the other matters. The statutory provision, in cases like this, is express, that the plaintiff shall “recover judgment for the amount of the bond, on which judgment an execution may issue for such sum as it may be ascertained will be sufficient to indemnify the person so suing.” The judgment in the case before us does not conform with this provision. It is, therefore, erroneous, and must be reversed. The court award a venire de novo, and remand the cause to the court of common pleas of Licking county, with leave to the parties to amend their pleadings.

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By the Court :

There is a difference of opinion among the judges as to the validity of the plea. But as they are unanimous in the opinion [289]*289that the judgment was erroneously entered, they do not decide upon the other matters. The statutory provision, in cases like this, is express, that the plaintiff shall “recover judgment for the amount of the bond, on which judgment an execution may issue for such sum as it may be ascertained will be sufficient to indemnify the person so suing.” The judgment in the case before us does not conform with this provision. It is, therefore, erroneous, and must be reversed. The court award a venire de novo, and remand the cause to the court of common pleas of Licking county, with leave to the parties to amend their pleadings.

Smith's Administrators v. Commissioners of Licking County, 2 Ohio 312 (Ohio 1826).

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