Teegardin v. Foley

Court of Common Pleas of Ohio, Franklin County, Civil Division

Teegardin v. Foley

136 N.E.2d 625, 72 Ohio Law. Abs. 545, 1954 Ohio Misc. LEXIS 342

CourtCourt of Common Pleas of Ohio, Franklin County, Civil Division

DecidedSeptember 29, 1954

DocketNo. 187616

StatusPublished

This text of 136 N.E.2d 625 (Teegardin v. Foley) is published on Counsel Stack Legal Research, covering Court of Common Pleas of Ohio, Franklin County, Civil Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Teegardin v. Foley, 136 N.E.2d 625, 72 Ohio Law. Abs. 545, 1954 Ohio Misc. LEXIS 342 (Ohio Super. Ct. 1954).

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Opinion

OPINION

By BARTLETT, J.

DEMURRER TO PLAINTIFF’S REPLY, AS INSUFFICIENT IN LAW OVERRULED.

Upon demurrer to a pleading,

“In thus passing upon the sufficiency of the facts alleged, the court is required to follow the code rule requiring pleadings to be construed favorably to the pleader, and to give to the language of the petition (or other pleading such as the answer or reply) a liberal construction * * * to sustain his pleading: * * * the court must make the most but of a pleading, and not the least.” 31 O. Jur. Pleading, Sec. 142, p. 700.

“The conviction entertained, conclusion reached, or judgment formed by the pleader upon his own conception of his cause can be afforded no effect or weight whatever upon demurrer.” Ibid.

■ “It is a universal rule, so well known as hardly to require citation of authority, that for the purpose of testing the sufficiency in law of the facts pleaded, — for its own purpose, — a demurrer confesses the truth of the proper and well pleaded averments of the pleading attacked, and whatever can, by fair and reasonable intendment be implied from those allegations, so far as is necessary to enable the court to determine the sufficiency of the pleading objected to, and no farther.” Ibid, Sec. 103, p. 661.

The common law rule that pleadings be construed most-strongly [546]*546against the pleader — is completely abrogated in Ohio, by the code provision “that the allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties;” (now §2309.40 R. C.) Ibid, Sec. 49, p. 58.

In view of the code requirement, and the fact that two judges of this court have reached opposite conclusions as to the constitutionality of the statutory law involved in the instant case, this branch feels constrained to overrule the demurrer to the reply herein, which is accordingly done, with the conviction that the issues involved should be heard on their merits in the trial court.

Entry accordingly, saving proper exceptions thereto.

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OPINION

By BARTLETT, J.

DEMURRER TO PLAINTIFF’S REPLY, AS INSUFFICIENT IN LAW OVERRULED.

Upon demurrer to a pleading,

“In thus passing upon the sufficiency of the facts alleged, the court is required to follow the code rule requiring pleadings to be construed favorably to the pleader, and to give to the language of the petition (or other pleading such as the answer or reply) a liberal construction * * * to sustain his pleading: * * * the court must make the most but of a pleading, and not the least.” 31 O. Jur. Pleading, Sec. 142, p. 700.

“The conviction entertained, conclusion reached, or judgment formed by the pleader upon his own conception of his cause can be afforded no effect or weight whatever upon demurrer.” Ibid.

■ “It is a universal rule, so well known as hardly to require citation of authority, that for the purpose of testing the sufficiency in law of the facts pleaded, — for its own purpose, — a demurrer confesses the truth of the proper and well pleaded averments of the pleading attacked, and whatever can, by fair and reasonable intendment be implied from those allegations, so far as is necessary to enable the court to determine the sufficiency of the pleading objected to, and no farther.” Ibid, Sec. 103, p. 661.

The common law rule that pleadings be construed most-strongly [546]*546against the pleader — is completely abrogated in Ohio, by the code provision “that the allegations of a pleading shall be liberally construed, with a view to substantial justice between the parties;” (now §2309.40 R. C.) Ibid, Sec. 49, p. 58.

In view of the code requirement, and the fact that two judges of this court have reached opposite conclusions as to the constitutionality of the statutory law involved in the instant case, this branch feels constrained to overrule the demurrer to the reply herein, which is accordingly done, with the conviction that the issues involved should be heard on their merits in the trial court.

Entry accordingly, saving proper exceptions thereto.

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Bluebook (online)

136 N.E.2d 625, 72 Ohio Law. Abs. 545, 1954 Ohio Misc. LEXIS 342, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teegardin-v-foley-ohctcomplfrankl-1954.