Simonoskis v. Brotherton , 3 Ohio Law. Abs. 748 ( 1925 )

WARDEN, J.

C. J. Brotherton brought this action in the Allen Common Pleas to recover $810.50, attorneys fees, upon an alleged contract with a partnership composed of John Simonoskis and John H. Nichols. Simonoskis moved a non-suit on the ground that the partnership being for an illegal purpose, could not support a contract of employment, whereupon, at Brother-ton’s request, the court granted him leave to amend his petition to show that the contract was entered into with Simonoskis to defend Nichols from criminal liability.

The Common Pleas court rendered judgment for Brotherton upon his amended petition, and Simonoskis prosecuted error excepting to the permission given Brotherton to amend his petition. The Court of Appeals held:

1. Simonoskis made no request for continuance and no statement was made by him that he was taken by surprise.

2. It was within the discretion of the Court to permit Brotherton to amend his petition upon reasonable terms.

3. As Simonoskis made no request for continuance, no error was committed by the court below in permitting Brotherton to amend his petition.

Judgment affirmed.