Barrett v. W. S. Goff Co.

11 Ohio Law. Abs. 323 | Ohio Ct. App. | 1932

MAUCK, PJ. '

The petition so stricken stated no cause of. action. It did plead that the- defendant had “wrongfully” brought certain actions that resulted in a cloud on property in which the plaintiff had an interest. The petition did not state any acts, however, that made the institution of such suits wrongful. The petition was clearly insufficient. Leave was given the plaintiff to amend but the plaintiff refused to exercise the right. Judgment followed. The court, however, in striking the petition from the files apparently did so on the ground, inter alia, that the petition was frivolous and vexatious. While this is inconsistent with the right to amend granted the plaintiff the record so reads. Compelled as we are to indulge every presumption in favor of the action of the trial court we must aásume that it had evidence to support its finding that the amending pleading was frivolous and harrassing in fact. No bill of exceptions was taken nor does the entry show that the motion was sustained solely on the affidavit found with the original papers. In the absence of a bill of exceptions or other means of record to show that the trial court acted without sufficient warrant the judgment is affirmed.

MIDDLETON and FARR, JJ, concur.