Losee v. Krieger , 1 Ohio Law. Abs. 599 ( 1923 )

CHITTENDEN, J.

Epitomized Opinion

This was an action by Losee. The petition alleged that the plaintiff was the administrator of the estate of Olive Marquard and that the defendant, Krieger, was executor of the estate of John Marquard. Krieger was made a defendant personally and also as executor. The plaintiff alleged that Olive Marquard was the beneficiary of certain life insurance policies on John Marquard’s life and that the policy was wrongfully coPected by Krieger. It also-was alleged that Krieger wrongfully collected from the bank over $3.000. which belonged to Olive Marquard. It was also set up that the executor sold and appropriated the proceeds of a sale of a stock of drug-s amounting to over $5,000, together with other personal effects, all of which belonged to Olive. The prayer to the petition asked for an accounting. A demurrer was fi’ed by the defendant and sustained. Thereupon an amended petition was filed which differed from the original in no way except that it had four interrogatories attached. A demurrer was filed to this petition and this also was sustained. Plaintiff prosecuted error to the Court of. Appeals. In reversing the judgment of the lower court, the Appeals held:

1. The prayer of a petition is no part of it and although the plaintiff may be mistaken as to the. relief to which he is entitled, the court, will give the relief the statement of facts contained in the petition shows the plaintiff entitled to.

2. Under GC. 10673 no specific form of pleading is required to be filed or followed and where facts are set forth showing that plaintiff’s rights have been jeopardized, a sufficient cause of action is set forth.