71 Ohio Law. Abs. 529 | Oh. Ct. Com. Pl., Franklin Civil Division | 1954
OPINION
MOTION OF PLAINTIFF TO STRIKE FROM THE FILES, THE ANSWER AND CROSS PETITION OF DEFENDANT LORETI, IS OVERRULED.
The Court has inherent power to strike sham pleadings from the flies in the due and speedy administration of justice, where the evidence introduced discloses no conflict on any material point and leaves no reasonable doubt that such order should be made. White v. Calhoun et al, 83 Oh St 401.
No such showing appears on the face of the pleadings, and the Court should not make such an order on mere assertions of counsel. The deposition referred to is not in the Clerk’s office and the Court has no evidence before it in support of such assertions.
Then, too, the cross petition of the defendants Bahrick and wife, owners of the real estate, to the cross-petition of defendant Loreti, lends substance to the latter answer to plaintiff’s petition,' and at least makes the striking of such answer from the files of little value. These matters should be heard on their merit in open court, if the parties are unable to compose their differences.
In any event, “the discretion of • the court in such case should be exercised wisely and with discrimination, and such motion sustained only upon such showing upon the part of the plaintiff as leaves no question whatever of the truth and conclusiveness of the plaintiffs’ evidence. A situation in which there is conflict of evidence upon any material point, or admitting of a rational doubt as to the proper order to be made, should result in the overruling of the motion.” Spear, C. J., p, 407, in delivering the opinion of the court in the case of White v. Calhoun, et al, supra.
The motion of the defendant Schreiner, etc., to strike from the files the answer of defendant Loreti to the former’s cross petition should be
Entry accordingly with exceptions of counsel for plaintiff.