Wherry v. Frolick

33 Ohio C.C. Dec. 647, 22 Ohio C.C. (n.s.) 409, 1907 Ohio Misc. LEXIS 453

• Court: Cuyahoga Circuit Court
• Decided: February 11, 1907
• Status: Published

Opinion

WINCH, J.

The cross-petition of plaintiff in error, defendant below, was properly stricken-off, because, the case coming on appeal from a justice court, the amount set up for the first time in the common pleas court, by cross-petition was beyond the jurisdiction of a justice of the peace. Second Nat. Bank v. Walbridge, 19 Ohio St. 419, 427; Henry Bill Publishing Co. v. Curtis, 1 Dec. 476 (7 N. P. 202).

There was no error in refusing leave to refile said, cross-petition as part of the answer.

This ruling was made at the trial. Some time before that defendant had been granted leave to answer, and his time therefor expired without his taking advantage of it. His last request came too late, and it was within the discretion of the trial judge to refuse it.

There was no error in refusing the request for leave to file a supplemental answer, setting up the fact that the plaintiff, since the commencement of the action, had made a general assignment for the benefit of creditors. Section 5012, Revised Statutes; Lowry v. Anderson, 57 Ohio St. 179 [48 N. E. 810].

The denial in the answer of the allegation in the petition that on the account sued upon “there is due and payable from the defendant to this plaintiff the sum of $257.86 with interest, ’ ’ is but the denial of legal conclusions.

The words “due and payable,” as us^d by the pleader means “owing.”

Interest arises by operation of statute and to deny that interest is due on an unpaid account, is to deny a matter of law, and not of fact.

Judgment was properly rendered on the pleadings, for the defendant in error, and it is affirmed.

Henry and Marvin, JJ.