Weinreich v. Franklin Savings & Loan Ass'n

43 N.E.2d 293, 36 Ohio Law. Abs. 186, 1938 Ohio Misc. LEXIS 1125

Opinion

OPINION

BY THE COURT:

Application is made to vacate and strike from the files the final entry heretofore approved and journalized in this Court.

In connection with the application there is filed a proposed entry which modifies the former entry by-adding a mandate remanding the-cause to the Common Pleas Court, of Montgomery County with directions to permit the plaintiff, appellant to file amended petition and for further proceedings according to law.

The body of the entry is also-modified so as to make it appear that the appeal from the Common Pleas Court to the Appellate Court was predicated upon the trial court sustaining a demurrer. Counsel overlooks the fact that the sustaining of the demurrer was not the final order in the Common Pleas Court, although it was the predicate for the final order. The final order is presented through the following short paragraph:

“Plaintiff not desiring to plead further, judgment is hereby rendered for the defendant and the petition dismissed, at costs of plaintiff, to all of which plaintiff notes exception.”

The proper practice demands that every effort should be exhausted to properly state a cause of action before stating to the court that they do not desire to plead further and thereby furnishing to the trial court the predicate upon which to enter final judgment upon the pleadings.

The application to vacate and strike entry from the files is denied.

BARNES, PJ., HORNBECK & GEIGER, JJ., concur.