Sterling v. Hanley Motor Sales

• Decision Date: 06 February 1950
• Parties: , 43 O.O. 79 STERLING v. HANLEY MOTOR SALES.
• Court: Ohio Court of Appeals

Page 362

87 Ohio App. 362

95 N.E.2d 273, 43 O.O. 79

STERLING v. HANLEY MOTOR SALES.

Court of Appeals of Ohio, Lucas County.

Feb. 6, 1950.

Syllabus by the Court.

1. Where motions to strike from a petition and to strike from the files an amended petition are granted, the plaintiff by

filing a second amended petition thereby abandons his earlier pleadings and elects to rely upon that petition, and on review of an adverse judgment he cannot assign as error the granting of those motions.

2. A motion is not a pleading within the contemplation of Section 11348, General Code, which authorizes a party to annex an interrogatory to a pleading.

3. The proper way to object to an interrogatory attached to a motion is by demurrer, and a party answering the interrogatory thereby waives his right to object to it.

4. A demurrer to a petition is addressed only to what 'appears on the face' of such petition. Section 11309, General Code.

5. The principle that a demurrer searches the record relates only to the pleadings and does not contemplate consideration of matters which may have otherwise come into the record.

6. The purpose of annexing interrogatories to a pleading is discovery to enable a pleader to prepare and plead his own case and is not to help him destroy the case of his adversary.

J. W. Starritt, Toledo, for appellant.

Harley A. Watkins, Toledo, for appellee.

CARPENTER, Judge.

A demurrer to the second amended petition was sustained and the petition dismissed. From that order this appeal on questions of law followed.

This case has had an unusual procedural history. The petition alleged that plaintiff purchased an automobile from defendant; that defendant 'maliciously and falsely warranted the said automobile to be one month old and to be a new automobile, and to be fit and proper for purposes of a passenger automobile'; that plaintiff relied on that warranty and paid for the automobile with a used automobile, cash and a note; that the automobile purchased was not as warranted; that the automobile was not in fact new, but was five months old, was rusted, corroded, defective and not of the value paid for it; and that when plaintiff discovered these facts he notified defendant and offered to return the automobile to him and demanded back his used automobile and cash, which defendant refused. Plaintiff prayed for $1,200 actual damages and $500 exemplary damages.

Defendant filed a motion to strike out various parts of the petition, including the allegations as to warranties and particularly that they were 'maliciously and falsely' made and the negations of them, and to make other allegations definite. Also included in matters to be stricken was the prayer for exemplary damages. The defendant appended to its motion a photostatic copy of what was apparently plaintiff's order for the purchase of the automobile, which included the terms of sale, the motor number and a provision as to warranties, and it asked the court to order plaintiff to answer under oath the interrogatory whether that was a true copy of the order and whether he signed such agreement.

The court granted practically all the motion to strike and to make definite, and ordered plaintiff to answer the interrogatory.

The plaintiff in writing objected and excepted to the interrogatory, then answered 'that the alleged photostatic copy of the sales agreement annexed to defendant's motion, was signed by the plaintiff, and that said photostatic copy to the best of plaintiff's recollection is a correct duplicate of the original.'

An amended petition was then filed which conformed to the court's order excepting the prayer which was for $2,000 for actual and exemplary damages, attorney fees and court costs.

A motion to strike from the files the amended petition, because it included in its prayer exemplary damages, was granted. The amended petition having been stricken, the issue on the demurrer to it was held to be moot.

An amended answer to defendant's interrogatory was filed by plaintiff in which he stated 'that the alleged photostatic copy of the sales agreement, annexed to plaintiff's motion, was never seen nor signed by the plaintiff.'

In the oral argument in this court, counsel for plaintiff explained that plaintiff's original answer to the interrogatory was made under a mistake of fact on his part.

A second amended petition was filed in substantially the same form as the amended petition, except the prayer was for $1,200 and there was no mention of exemplary damages. It alleged that defendant, 'as part of the contract of sale, warranted the said automobile to be one month old and to be a new automobile, and to be fit and proper for purposes of a passenger automobile.'

The warranty was negatived as to age of the automobile and many defects in it were specifically enumerated. The plaintiff also alleged the offer to return the property and the demand for the consideration paid for it.

To this, defendant demurred on the ground 'that said second amended petition fails to state a cause of action against the defendant when considered together with the admissions of the plaintiff of record in this case.'

This demurrer was sustained and, plaintiff not desiring to plead again, him amended petition was dismissed and judgment for defendant was entered.

There are three material assignments of error. Two of them relate to the action of the court in disposing of the petition and amended petition. In both the amended and second amended petitions, objections are made and exceptions taken to the court's action on the preceding petition.

In Grimm v. Modest, 135 Ohio St. 275, 20 N.E.2d 527, the syllabus states as follows the settled law of Ohio on the effect of pleading over, as did plaintiff herein after these motions were...