Sparks v. Y. & T. Co.

118 N.E.2d 691, 67 Ohio Law. Abs. 47

• Court: Court of Common Pleas of Ohio, Franklin County, Civil Division
• Decided: January 29, 1952
• Docket: No. 4591
• Status: Published

Opinion

OPINION

By MILLER, J.

This is a law appeal from the judgment of the Municipal Court of Columbus, Ohio. The action was one to recover rent paid on real estate in excess of the maximum fixed by the Office of Price Administration. The petition sets forth a cause of action seeking triple damages in the sum of $930.00 and $50.00 attorney fees.

The answer was a general denial. A cross-petition was also filed in which the defendant sought $500.00 for the conversion of certain furniture.

Upon the issues drawn trial was had, the Court entering up judgment for the plaintiff for the sum of $360.00 plus $100.00 attorney fees.

The error assigned is that the judgment is contrary to law in that the plaintiff was allowed a greater sum for attorney fees than he had sought in the petition, to wit, $100.00, whereas the petition sought only $50.00.

Although not separately stated and numbered, the petition in reality sets forth two causes of action: one for the recovery of the excessive rent payments in the form of triple damages, and the other for attorney fees for the collection of the same. Sec. 11305 GC defines what the petition must contain and provides that if the recovery of money is demanded the amount shall be stated. As the plaintiff only sought $50.00 in the cause of action seeking attorney fees, his recovery must be limited to that amount. The record reveals that the summons contained the endorsement that the amount sought was $980.00. Therefore the Court had jurisdiction to enter the judgment which we find to be erroneous in amount only. The judgment will be modified and since the recovery for rent is not in dispute we will enter the judgment that should have been entered, to wit, judgment for the plaintiff for $360.00 and $50.00 attorney fees.

HORNBECK, PJ, WISEMAN, J, concur.