Opinion
No. 27236
Decided April 12, 1939.
Pleading — Substitution of amended petition ordinarily constitutes abandonment of earlier pleading — Appeal lies from striking from petition substantial part of claim, when.
1. The substitution of an amended petition for an earlier one ordinarily constitutes an abandonment of the earlier pleading and a reliance upon the amended one.
2. When a substantial part of a plaintiff's claim has been stricken from his petition he may elect to rely upon such petition and, upon dismissal of his cause by the court for refusal to amend, may have a review to determine the correctness of the trial court's action.
APPEAL from the Court of Appeals of Montgomery county.
The plaintiffs instituted this action in the Court of Common Pleas for the recovery of damages allegedly resulting from the defendants' wrongful use and occupation of certain property belonging to the plaintiffs.
The defendants filed a motion asking among other things that several allegations be stricken from the plaintiffs' petition. The trial court sustained the motion in part and overruled it in part. Leave was given the plaintiffs to amend their petition. Then, according to the journal, "the attorneys for the plaintiffs having courteously advised the court that they do not want to and will not make all of said changes and amendments to their petition," the trial court dismissed the petition for this reason.
Upon appeal on questions of law the judgment of dismissal was affirmed by the Court of Appeals.
By reason of the allowance of a motion to certify, the case is in this court for review on questions of law.
Mr. John W. Dale and Mr. A.K. Meck, for appellants.
Messrs. Scharrer, Scharrer, McCarthy Hanaghan, for appellees.
The single question requiring the attention of this court at this time is whether the Court of Appeals was correct in limiting its consideration to the dismissal of the petition and in refusing to review the action of the trial court striking several substantial allegations from the petition.
The plaintiffs contend that they had the right to elect whether to amend or to rely upon their original petition. They concede the power of the trial court to strike the allegations from the petition and to enter the judgment of dismissal when they refused to amend, but they strenuously insist that both phases of the trial court's action are subject to review. The Court of Appeals agreed with the plaintiffs' view that the action of the trial court constituted a final order, but held that until after the trial of the case there could be no review of that part of the order striking the allegations from the petition.
As this matter now stands the plaintiffs find themselves in an anomalous and bewildering dilemma. A substantial part of their claim for damages has been stricken from their petition. First they are told that they have mistaken their remedy in attempting to appeal at this time before the case has been tried. Then they are told that their only remedy was to avail themselves of the opportunity the trial court gave them to file an amended petition omitting this important part of their claim and thus changing the theory of their case. But if they had followed this suggested devious course by filing an amended petition and proceeding to trial upon one part of their claim alone, what then would have been their situation when finally asking the Court of Appeals to review that portion of the trial court's order striking the other part of their claim from the original petition? Obviously they would have been met with the proper and effective rebuff that by filing an amended petition they had waived that part of their claim omitted therefrom. As pointed out on page 75 of the opinion in the case of State, ex rel. Talaba, v. Moreland, Judge, 132 Ohio St. 71, 5 N.E.2d 159, "it is elementary law that when a party substitutes an amended petition for an earlier one, this constitutes an abandonment of the earlier pleading and a reliance upon the amended one. The earlier pleading becomes functus officio." The plaintiffs had the right to elect to rely upon their original petition and have judgment entered against them in order to ask the reviewing courts to determine at once whether the trial court was correct in striking out a substantial part of their claim. As stated in 2 Ohio Jurisprudence, 799, Section 683, "it is * * * prejudicial error to strike from a pleading language which is material and proper to be averred." It of course will not do to say to the plaintiffs that the order entered against them is final but not immediately and completely reviewable. If it is final it manifestly is subject to immediate review.
The Court of Appeals relied principally on the decision of this court in the case of Toledo Rys. Light Co. v. Klink, 81 Ohio St. 561, 91 N.E. 1141. The difficulty with this case is that it came to this court under the procedure in vogue before the Constitution of Ohio was amended in 1912, and the decision was announced unaccompanied by an opinion indicating the court's rationale. It is therefore impossible to determine how the court decided each of the several questions presented. It might have concluded merely that the trial court was correct in striking certain allegations from the petition.
The judgment of the Court of Appeals must be reversed and the cause remanded to that court with instructions to consider and determine the correctness of the trial court's action in striking a substantial part of the plaintiffs' claim from their petition.
Judgment reversed and cause remanded.
DAY, ZIMMERMAN, WILLIAMS, MYERS, MATTHIAS and HART, JJ., concur.