Williams v. Burkheimer

8 Ohio N.P. 134

• Court: Ohio Superior Court, Cincinnati
• Decided: July 1, 1900
• Status: Published

Opinion

DEMPSEY, J.

The petition counts on two promissory notes, with a prayer for judgment for $633.32. Defendant answers, first denying that “he is indebted to plaintiffs in the sum of $633.32, as alleged in petition”, and further avers that “he is entitled to credits upon said notes for which no allowance has been made to him.”

J. Bogers Wright, for demurrer. Jas. S. Myers, contra.

General demurrer to the answer. The demurrer must be overruled. The answer intends to present two defenses, one in the nature of a general or special denial as to liability; the other in the natme of a total or partial payment. The defenses,- however, are not well pleaded; but the remedy is not by demurrer. As to the denial, the remedy is by motion to strike that from the answer, on the ground that it is of no legal significance, it being the statement of a mere legal conclusion, embodying no matter of fact,and therefore tendering no issue of fact. See Bank v. Lloyd’s Adm’rs 18 Ohio St., at page 865; Larimore v. Wells, 29 Ohio St., 13.

As to'tne second defense, the remedy is by motion to niake more definite and certain “The facts, if well stated would constitute a sufficient défense”, at least partially. See Everett v. Wayne, 30 Ohio St., 308.

The demurrer will be overruled, but the court on its own motion, will order stricken from the answer the averment in denial of the indebtedness, and will order its averment as to credits to be made more definite and certain by setting forth the time when amount, and method by which the credits or payments were made.

Defendant is given — days to amend.