Thornton v. Mid America Finance & Loan Co.

Ohio Court of Appeals

Thornton v. Mid America Finance & Loan Co.

196 N.E.2d 332, 8 Ohio App. 2d 229, 94 Ohio Law. Abs. 542, 29 Ohio Op. 2d 312, 1964 Ohio App. LEXIS 438

CourtOhio Court of Appeals

DecidedFebruary 20, 1964

Docket26694

StatusPublished

Cited by7 cases

This text of 196 N.E.2d 332 (Thornton v. Mid America Finance & Loan Co.) 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

Thornton v. Mid America Finance & Loan Co., 196 N.E.2d 332, 8 Ohio App. 2d 229, 94 Ohio Law. Abs. 542, 29 Ohio Op. 2d 312, 1964 Ohio App. LEXIS 438 (Ohio Ct. App. 1964).

Pincite

Opinion

Per Curiam.

This appeal comes to this court on questions of law from the Municipal Court of Cleveland on the overruling .of defendant’s motion to tax costs of depositions. The subject costs were incurred by the defendant in the taking of depositions, pursuant to Section 2319.06, Revised Code, and the issuance of subpoenas duces tecum. These subpoenas were directed to plaintiff to produce certain records that were needed to secure information to .enable the defendant to prepare' its defense. During this time four amended petitions were filed and ordered stricken by the court. Upon failure of plaintiff to file a fifth amended petition, the court dismissed the action which negated both the purpose of taking further depositions and the filing and use of same in the case.

The depositions were not taken de bene esse (that is, no anticipation of future need) but were taken to formulate a defense. The effect of the court’s ruling is to saddle the defendant with these substantial eosts, leaving the plaintiff free *543 to refile her cause. We find that the depositions were taken in good faith and were a necessary adjunct to the preparation of defendant’s case. See Farmers Union Fidelity Ins. Co. v. Farmers Union Co-operative Ins. Co., 147 Neb., 1093, 26 N. W. (2d), 122.

The order is, therefore, reversed as contrary to law, and the cause remanded to the Municipal Court of Cleveland with instructions to grant defendant’s motion to tax costs of depositions as costs in the case.

Exceptions. Order see journal.

Skeel, C. J., Silbert and Artl., JJ., concur.

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Per Curiam.

This appeal comes to this court on questions of law from the Municipal Court of Cleveland on the overruling .of defendant’s motion to tax costs of depositions. The subject costs were incurred by the defendant in the taking of depositions, pursuant to Section 2319.06, Revised Code, and the issuance of subpoenas duces tecum. These subpoenas were directed to plaintiff to produce certain records that were needed to secure information to .enable the defendant to prepare' its defense. During this time four amended petitions were filed and ordered stricken by the court. Upon failure of plaintiff to file a fifth amended petition, the court dismissed the action which negated both the purpose of taking further depositions and the filing and use of same in the case.

The depositions were not taken de bene esse (that is, no anticipation of future need) but were taken to formulate a defense. The effect of the court’s ruling is to saddle the defendant with these substantial eosts, leaving the plaintiff free *543 to refile her cause. We find that the depositions were taken in good faith and were a necessary adjunct to the preparation of defendant’s case. See Farmers Union Fidelity Ins. Co. v. Farmers Union Co-operative Ins. Co., 147 Neb., 1093, 26 N. W. (2d), 122.

The order is, therefore, reversed as contrary to law, and the cause remanded to the Municipal Court of Cleveland with instructions to grant defendant’s motion to tax costs of depositions as costs in the case.

Exceptions. Order see journal.

Skeel, C. J., Silbert and Artl., JJ., concur.

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Bluebook (online)

196 N.E.2d 332, 8 Ohio App. 2d 229, 94 Ohio Law. Abs. 542, 29 Ohio Op. 2d 312, 1964 Ohio App. LEXIS 438, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thornton-v-mid-america-finance-loan-co-ohioctapp-1964.

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