Thornton v. Mid America Finance & Loan Co.

196 N.E.2d 332 | Ohio Ct. App. | 1964

This appeal comes to this court on questions of law from the Cleveland Municipal Court on the overruling of defendant's motion to tax costs of depositions. The subject costs were incurred by the defendant in the taking of depositions, pursuant to Section 2319.06, Revised Code, and the issuance of subpoenasduces tecum. These subpoenas were directed to plaintiff to produce certain records that were needed to secure information to enable the defendant to prepare its defense. During this time four amended petitions were filed and ordered stricken by the court. Upon failure of plaintiff to file a fifth amended petition, the court dismissed the action which negated boththe purpose of taking further depositions and the filing and useof same in the case.

The depositions were not taken de bene esse (that is, no anticipation of future need) but were taken to formulate a defense. The effect of the court's ruling is to saddle the defendant with these substantial costs, leaving the plaintiff free to refile her cause. We find that the depositions were taken in good faith and were a necessary adjunct to the preparation of defendant's case. See Farmers Union Fidelity Ins.Co. v. Farmers Union Co-operative Ins. Co., 147 Neb. 1093,26 N.W.2d 122.

The order is, therefore, reversed as contrary to law, and the cause remanded to the Cleveland Municipal Court with instructions to grant defendant's motion to tax costs of depositions as costs in the case.

Judgment reversed.

SKEEL, C. J., SILBERT and ARTL, JJ., concur.